The Assembly met at 10:30 am (Speaker [Mr Mitchel McLaughlin] in the Chair).
Members observed two minutes' silence.

Assembly Business

Mr Speaker: Before we proceed to today's business, I remind Members that, due to unforeseen circumstances, the Minister for Regional Development was not able to attend Question Time yesterday.  The Minister for Social Development, who was due to answer questions today, took his place, and questions to the Minister for Regional Development will commence at 2.00 pm.  All Members were notified of that change last Friday.

Ministerial Statements

North/South Ministerial Council:  Plenary

Martin McGuinness: Go raibh maith agat, a Cheann Comhairle.  In compliance with section 52C(2) of the Northern Ireland Act 1998, we wish to make the following statement on the twentieth meeting of the North/South Ministerial Council (NSMC) in plenary format, which was held in Dublin on Friday 5 June 2015.  The Ministers who attended the meeting have agreed that we can make this report on their behalf.
Our delegation was led by the Finance Minister, Arlene Foster MLA, and me.  In addition, the following Ministers were in attendance:  Minister Durkan; Minister Farry; Minister Ford; Minister Hamilton; Minister Kennedy; Minister Ní Chuilín; Minister O'Dowd; Minister Storey; junior Minister McIlveen; and junior Minister McCann
The Irish Government delegation was led by the Taoiseach, Enda Kenny TD.  The following Irish Government Ministers were also in attendance:  Tánaiste and Minister for Social Protection, Joan Burton; Minister for Foreign Affairs and Trade, Charles Flanagan; Minister Noonan; Minister Howlin; Minister Fitzgerald; Minister Reilly; Minister Varadkar; Minister White; Minister Donohoe; Minister Humphreys; Minister of State Hayes; and Minister of State Sherlock.
The meeting started with a discussion on the challenges facing both Administrations and the policies being implemented to support economic growth and job creation and to improve living standards.  That included discussions on foreign direct investment (FDI) and working together to build trade links with key developing markets.  I think that we are all pleased with the positive signs in both economies, but, of course, it is important that we work to support the recovery.
We then had a good discussion on the various EU funding opportunities that are available.  Ministers noted the discussions that have taken place across all NSMC sectors in relation to EU funding opportunities and the identification of relevant programmes that are available for collaborative funding applications.  There is a real opportunity for us to work together in this area, and Ministers agreed to continue to examine opportunities and progress in drawing down collaborative EU funding.
Approval of the INTERREG V programme by the European Commission was welcomed, and the Council looked forward to the early finalisation of the Peace IV programme.  Ministers welcomed the early indications of good progress towards reaching the joint target of €175 million in cross-border collaborative drawdown under the Horizon 2020 programme and the work of InterTradeIreland and the all-island steering group in raising awareness of the programme.  The Council agreed that a further update on EU funding opportunities will be brought to the next plenary meeting.
The next item on the agenda was sectoral priorities.  The Council noted that sectoral priorities were discussed at the NSMC institutional meeting on 25 February 2015 and that new sectoral priorities will be an agenda item at future institutional meetings.  The Council also noted the decision that was agreed at the NSMC institutional meeting that Ministers would review their current work programmes and that endorsement of any changes will be sought at a future NSMC plenary meeting.  Ministers agreed that the matter of sectoral priorities and the current review of work programmes will be kept under active review.
Ministers then went on to have an extensive discussion on cross-border smuggling and fuel laundering.  The issue had been raised at previous plenary meetings and at recent NSMC environment, agriculture and transport meetings.  Ministers noted the ongoing efforts by both jurisdictions to tackle the serious issue and noted the introduction of the new fuel marker in both jurisdictions.   The Council noted that the issue is also of concern at EU level.  The Commissioner for Environment, Maritime Affairs and Fisheries has been in correspondence with Environment Ministers, North and South, concerning latest developments and actions taken to address the issue.  The Council recognised the importance of closer cooperation between agencies in tackling and combating cross-border smuggling and fuel laundering and agreed that the topic be revisited at a future meeting.
An update was then provided on the north-west gateway initiative.  The Council noted the continued engagement between officials from the Department of Foreign Affairs and Trade and the Office of the First Minister and deputy First Minister with stakeholders concerning the future development of the north-west gateway initiative and the ongoing discussions on arrangements to hold a meeting of relevant Ministers in the north-west.  The Council further noted the current work by Donegal County Council and Derry City and Strabane District Council to develop new and collaborative cross-border arrangements at local government level to promote the development of the north-west region consistent with the aims of the north-west gateway initiative.  Ministers noted that these arrangements aim to place cross-border cooperation in the north-west on a more formal basis in local government-led structures and will allow for the development of the future direction and priorities for the region in cooperation with central government and other stakeholders.  Ministers also noted the ongoing work on the A5.
The Council then noted that, in line with the decision taken at the NSMC institutional meeting on 25 February 2015, the joint secretariat has consulted sponsor Departments and board members of the implementation bodies and Tourism Ireland Limited regarding the proposal to extend the existing terms of appointment of board members for 12 months.  This consultation is ongoing.  The Council agreed that decisions on board appointments will be made before the expiry of the current board members' terms of office in December 2015.
Next, the Council noted the progress report prepared by the NSMC joint secretaries on the work of the North/South bodies and in the other NSMC areas for cooperation and welcomed the following key developments.  Cooperation continues with regard to EU-related transport issues.  At their recent meeting in April 2015, Ministers noted the opportunity to strengthen the Trans-European Transport Network (TEN-T) application process through the development of cooperation statement templates that will support project applications.
Ministers also noted the position with regard to the INTERREG programmes, including the update on the INTERREG IV funding of the Belfast-Dublin Enterprise service upgrade and Drogheda viaduct works.
At the NSMC health and food safety meeting held at Altnagelvin Area Hospital on 15 April 2015, Ministers discussed ongoing cooperation in healthcare.  They welcomed the presentation by the Western Health and Social Care Trust representatives on the radiotherapy unit and had the opportunity to view the construction under way on the unit, which they were advised is on target for completion within the agreed time frame.
At the NSMC agriculture meeting on 25 February 2015, Ministers noted the recent developments in plans for the implementation of the Common Agricultural Policy reforms agreed in 2013, including administrative measures for direct payment schemes.
The Middletown Centre for Autism successfully hosted a major international conference on the theme of enabling education, targeted at professionals and parents of children with autism.  The event, attended by in excess of one thousand delegates, was opened by both Education Ministers and featured a range of eminent speakers from across the globe.  Progress continues to be made by the two Departments and the centre in facilitating the expansion of the centre’s range of services.
At the NSMC environment meeting on 13 May 2015, Ministers received an update on the agreed repatriation of waste programme for 2015, under which two illegal waste landfill sites will be addressed.  The issue of fuel laundering was discussed, and Ministers expressed concern at the impact of fuel laundering and stressed the importance of closer cooperation between agencies to tackle the issue.
At their meeting in January 2015, Ministers noted the various support structures put in place by InterTradeIreland to assist with the jointly agreed €175 million target for cross-border applications under the Horizon 2020 research and innovation programme.  Ministers also noted that early results were positive, with 45 cross-border applications to the programme and an economic value of €8·8 million for successful cross-border Horizon 2020 collaboration at that time.
The draft Peace IV and INTERREG programmes 2014-2020 were submitted to the European Commission on 22 September 2014, in line with the regulatory deadline.  The INTERREG programme was formally adopted on 13 February 2015, with calls expected to launch in early summer.  A number of outstanding issues still remain in the Peace IV programme, and high-level discussions are ongoing between the member states and the EU Commission.  It is hoped that the Peace IV programme will be approved shortly and be open for calls later in the year.
At the NSMC health and food safety meeting in April 2015, Professor Chris Elliott of Queen’s University Belfast gave a presentation on the topic of "Food safety and traceability:  an all-island imperative", which provided Ministers with valuable insight into this important subject.
Ministers welcomed reports on the activities of the Loughs Agency in promoting and marketing Foyle and Carlingford loughs, in particular marine leisure infrastructural developments, outreach and community activity, and promotion of local seafood products.
Progress continues on the publication of the new English-Irish dictionary flagship project, and an app for the new English-Irish dictionary will be available in the near future.  Progress continues on the Ulster-Scots community impact programme, which has been extended for a second year following a positive evaluation.
In February 2015, Minister Heather Humphreys announced the approval of the restoration by Waterways Ireland of a 2·5 kilometre stretch of the Ulster canal, connecting Castle Saunderson International Scout Centre to the Erne basin at an expected cost of approximately €2 million.
Finally, the Council noted that last year was another great year for tourism.  Total overseas visitors to the North for the first nine months of 2014 grew by 3% year on year.  Overseas visitors to the island of Ireland increased by 14% in the January to March 2015 period when compared to the same three-month period a year earlier.  The council also noted the very successful greenways and blueways information-sharing and networking event hosted by the joint secretariat on 30 April 2015.
Ministers then noted the current position on a North/South consultative forum.
The meeting ended with the Council approving a schedule of NSMC meetings proposed by the joint secretariat, including a NSMC institutional meeting in Autumn 2015 and the next NSMC plenary meeting in November 2015.

Mike Nesbitt: I thank the First Minister for that update.  Paragraph 6 states that there was a "discussion", paragraph 7 states that there was a "good discussion" and paragraph 14 states that there was "an extensive discussion".  Are those officially defined terms?  With regard to the discussion that was neither good nor extensive, what were the positive signs in both economies.

Martin McGuinness: I think that a bit of nitpicking is going on.  Obviously, we had a very thorough discussion in relation to the ongoing economic situation North and South.  We were able to record what is good news for us, the fact that we have had steadily decreasing unemployment figures over the last 28 months.
At the same time, we recognise that we are facing huge challenges in relation to the difficulties we are having to deal with as regards the austerity agenda that is coming at us from London.  Effectively, something like £1·5 billion was taken out of our Budget over the lifetime of the last Conservative Government, and further cuts are predicted by the Chancellor of the Exchequer.  That leaves us with a very challenging situation.  The fact that, even against that backdrop, we have been able to record unprecedented levels of foreign direct investment is obviously good news.
The South were also amplifying their decreasing unemployment figures.  During the meeting, they made the case that their economic situation was steadily improving, to which I asked, "When is the election?".  All I got was a smile in return and fingers pointing towards the Taoiseach.
Overall, the economic discussions that take place at these meetings are of great importance to all of us.

Stephen Moutray: The deputy First Minister is no doubt aware that many of those involved in fuel smuggling, especially along the south Armagh border, are former IRA members.  Many, like me, believe that they act with relative impunity to this day.  What tougher measures would the deputy First Minister like to see introduced to help tackle this crime, given that, to date, no one has served a custodial sentence for it?

Martin McGuinness: As far as I am concerned, the people involved in fuel smuggling and fuel laundering in south Armagh are criminals who need to be arrested and brought before the courts.  My party fully supports the authorities North and South that are charged with the responsibility for tackling this.
Quite apart from everything else, people involved in fuel laundering are endangering the lives of the people who live in the community.  The environmental fallout from the activity is disastrous for the local community, endangering people's health and animal health.  During the meeting, we were very encouraged by the fact that there is a new marker in the fuel, which makes it much more difficult for people to be involved in fuel laundering.  We welcome that very much.  We also welcome the fact that in the region of 100 illegal fuel-laundering plants have been detected and put out of business.
So, my party is absolutely of the view that anybody involved in this type of illegal activity is a criminal who needs to be arrested and brought before the courts.

Bronwyn McGahan: Go raibh maith agat.  What discussions took place regarding the efforts to resume the A5 project?

Martin McGuinness: We had a useful discussion on the prospects for the A5.  The issue comes up at all of the meetings that we have and at the margins of the meetings.  As I said, we did have a useful discussion on the prospects for the A5 project being resumed.
The next step is now for the Regional Development Minister to publish the draft orders.  I understand that, in response to a question for written answer on 24 April, the Minister stated that he would be bringing a new Executive paper on the way forward for the A5 within weeks.  I also met the Minister on 30 April, when he confirmed his intention to publish the draft orders imminently.  I welcome that commitment and, given the time frame that he has outlined, expect to see the new Executive paper in advance of the summer recess.
This is a vital project for the west and for all of the counties in the west from Derry right through Tyrone into County Fermanagh.  It is a project that will not just supply a first-class route in the northern stretch to link up with a first-class route in the southern end to Dublin; it is also a vital route for people in County Tyrone travelling to Belfast to link up with the M1 at Ballygawley.  The sooner that we see this project moving forward the better, and I look forward to the early announcement of the draft orders.

Pat Ramsey: I thank the deputy First Minister for the statement to the House, and I very warmly welcome the more determined approach in terms of the north-west gateway initiative.  I want to ask the deputy First Minister about the apathy felt in the north-west and Derry and Strabane, which have the highest levels of unemployment and economic inactivity.  Will the economic development of the north-west, including third level education and access to more employment opportunities, be the focus of any future deliberations?

Martin McGuinness: I absolutely agree with the Member.  That is one of the reasons why the First Minister and I agreed that we would form a subgroup of Ministers to deal with the very strong perception — it is more than a perception — that there are areas of the North that are not getting their fair share.  Quite clearly, that was a declaration of both his and my intent to ensure that the subgroup would tackle the unacceptable, high levels of unemployment that exist, particularly in the Derry and Strabane area.  There was to be a meeting of the north-west gateway initiative, but it did not happen for unforeseen reasons, and the health of the First Minister intervened on the second occasion.  We are hoping that that meeting will happen very shortly.
Obviously, we accept that the combined efforts of the Ministers involved in the north-west gateway initiative and the ministerial subgroup that we have formed need to tackle the whole of issue of, for example, Magee university and the numbers of students there.  The expansion of the university is absolutely critical for the importance of future economic development in the city.  Of course, the whole issue of infrastructure is of major importance, so the A5 and the A6 are very much in the forefront of all our minds.  Obviously, these contribute to the ability to attract foreign direct investment.

Chris Lyttle: Can I ask the deputy First Minister what the outstanding issues with the EU Peace and Reconciliation Programme IV are?  How will those be overcome, when will the programme open and how will it be linked with the OFMDFM regional good relations strategy, Together: Building a United Community?

Martin McGuinness: Obviously, this is something that has contributed tremendously for all of us in recent years.  The new Peace programme has not yet been finalised, and officials, North and South, are making every effort to reach agreement.  Minister Foster and Minister Howlin had a bilateral meeting on the morning of the NSMC plenary to discuss the Peace IV programme, and I know that there is a strong desire on both sides to get the programme agreed as quickly as possible.  Delays at the start of the programme will place us under pressure to meet spending targets later, so it is very important that we reach agreement as soon as possible.
As I recorded in the initial statement that I made, it is also very important for us to continue the work of maximising the success of Horizon 2020.
Good progress has been made by officials and Ministers, North and South, on that issue in relation to drawdown.

Jimmy Spratt: I thank the deputy First Minister for his statement.  I notice from the joint secretaries' progress report that cooperation on transport issues and opportunities to strengthen TEN-T applications continues.  Exactly what progress has been made and what project applications are being considered for TEN-T?

Martin McGuinness: The Minister for Regional Development advises that his Department submitted four applications under the Connecting Europe Facility call for funding, launched in October 2014.  Two of the applications submitted are for rail projects:  track refurbishment and upgrade work on the Belfast to Dublin lines and upgrading work on the Coleraine to Derry line.  The other two are road projects:  works relating to the A26 dualling scheme and studies for the Newry southern relief road.  In total, those projects are seeking up to £34 million of co-funding.
The upgrade to the Enterprise service is important to improve rail services between Dublin and Belfast, and we understand that the supply issues that had the potential to delay the project have been resolved, and NIR and Irish Rail are confident that the lost time can be recovered.  The total cost of the project, which is funded by INTERREG, is approximately £17 million, including the refurbishment of the Drogheda viaduct.  Once completed, this project will be a further positive example of North/South cooperation and will be of real benefit to rail users from both jurisdictions.
As many people know, there is a lot of focus on the Juncker plan, which has been much discussed recently, and we are continuing to explore how that can be exploited in our interests.

Sean Lynch: Go raibh maith agat, a Cheann Comhairle.  Gabhaim buíochas leis an Aire as a ráiteas.  I thank the deputy First Minister for his statement.  I noted, Minister, that you alluded to a meeting of the north-west gateway initiative.  How soon do you think it can take place?

Martin McGuinness: It should take place before recess.  It did not happen, due to unforeseen circumstances, but there is a strong commitment that the meeting should take place.  There is clear recognition that the north-west gateway initiative and the work of the ministerial subgroup is a priority in beginning the process of redressing the difficulties faced by people west of the Bann.

David McIlveen: I, too, thank the deputy First Minister for his statement.  Deputy First Minister, of the projects in this list, some are aspirational, some have commenced, and all have a degree of cost attached to them.  On the basis that the Assembly continues to haemorrhage over £10 million a month due to the failure to implement welfare reform, did the Ministers of the Irish Republic offer to pay for these projects?

Martin McGuinness: The Member will be as aware as we are that we had a commitment from the Irish Government on shared funding for the development of the A5.  Their commitment was to something in the region of £400 million in match funding for our side of the bargain.  Of course, the offer was withdrawn due to economic circumstances.  That was apart from the difficulties that the A5 then faced from the fallout of the judicial review, which we hope will be remedied shortly.
The challenges we face with the issues and the projects that we deal with on the North/South Ministerial Council are real.  Although some may be described as aspirational, they are very important for future development on the island, for the benefit of everyone on the island.
There was a bit of political point scoring in relation to funding.  People have to remember that this is about protecting the most vulnerable, marginalised and disabled in our society, and, yes, that comes at a cost.

Barry McElduff: Go raibh maith agat, a Cheann Comhairle.  My question follows on from those raised by Bronwyn McGahan and David McIlveen.  Is the deputy First Minister satisfied that Minister Paschal Donohoe and an Taoiseach, Enda Kenny, remain fully committed to the A5 project from the Dublin Government side?  I note the comments by the deputy First Minister on the expectation that a paper from Minister Kennedy on taking the project forward will come to the Executive in the coming weeks.

Martin McGuinness: The next stage in the process is the publication of the draft orders.  As the Minister for Regional Development indicated, both in an answer to a question from a Member and in a meeting that he participated in with me, he intends to do that within weeks.  For us, that is the next stage of the process.
How we will fund the road obviously represents a challenge for us, North and South, but the £50 million commitment that the Taoiseach made,  which, of course, falls short of the £400 million, is still on the table.  I hope that, in the context of, as the Irish Government describe it, an improving economic situation in the South, if we can get the green light to proceed with the road, they will recognise their responsibilities to come up with their side of the bargain.  It is a commitment of the North/South Ministerial Council.

Dolores Kelly: I thank the deputy First Minister for his statement.  Were any specific measures discussed or opportunities identified for EU funding to provide better high-end job opportunities and real employment opportunities and/or training for our young people to address the high levels of youth unemployment across the island?

Martin McGuinness: We are all very conscious of the challenges that most European countries face in addressing what are unacceptable levels of youth unemployment.  The key to all of that is for all of us to continue to bear down on the unacceptable unemployment figures out there.  Given the report that I gave earlier to the Assembly and the improving economic situation recorded at the meeting by Irish Government representatives and by us, based on a steady decrease in unemployment figures over 28 months, there is a big focus North and South, and, indeed, in the rest of western Europe, to recognise that young people are disproportionately affected by the unacceptable unemployment levels.
So, yes, there are projects that both Governments are pursuing, through DEL and DETI at our end and the relevant Departments in the South, to ensure that we continue to bear down on the figures with some degree of success, but we have to accelerate that success over the coming period.

Gregory Campbell: The deputy First Minister referred to extensive discussions on cross-border smuggling and fuel laundering.  Given that, over the past number of years, I and others have endeavoured to get the deputy First Minister to own up to having known people or to personal involvement that he would have had in terror-related activities in the distant past, is he now prepared to own up to knowing any former colleagues, whom he is bound to know of, who would be involved in fuel smuggling and laundering in border areas?  His denials are quite implausible.

Martin McGuinness: I do not think that that is a question that featured in the course of the North/South Ministerial Council meeting.

Jim Allister: Will the deputy First Minister elaborate on the reference to the EU's interest and involvement in the fuel smuggling issue?  What exactly does that amount to, and are infraction proceedings a possibility on foot of that?  Given the inextricable links between fuel smuggling and the republican movement, does the deputy First Minister know any fuel smugglers, and has he identified any to the authorities?

Martin McGuinness: No, I do not personally know any fuel smugglers.  In my earlier answer, I described any people involved in fuel smuggling or fuel laundering as criminals.  That is what I regard them as.  I believe that people who are involved in that type of activity need to be arrested and brought before the courts.  I give my wholehearted support to the authorities North and South in that endeavour.  As I said, I welcome very much the new marker that has gone into fuel, as it will make it very difficult for anybody to continue with fuel laundering.  I very much welcome that over 100 illegal fuel laundering plants have been shut down.
At the end of the day, in my opinion, the authorities North and South are well aware of who the fuel launderers and smugglers are.  It is not my job as the deputy First Minister to investigate that.  It is certainly my job to support the authorities in apprehending those criminals.

Alasdair McDonnell: I note that paragraph 9 mentions Horizon 2020.  Can the deputy First Minister perhaps elaborate on the all-island steering group or how we might gain more from the Horizon 2020 programme?  It has long been a bugbear of mine that we are drawing down only a fraction of the amount of research and development money in that context and that only three or four major players, like Queen's, the Ulster University and Shorts, were drawing down that money.  To my mind and in my opinion, it is vitally important that we exploit that opportunity to ensure further economic development here.

Martin McGuinness: As I indicated, we had a discussion at the meeting on the opportunities that are presented by the Horizon 2020 funding programme.  We are committed to increasing our success in Horizon 2020, and we have agreed a joint target of €175 million with the Irish Government for projects that have a cross-border element.
We recognise that this is a very competitive programme, but we see real opportunities for increased cooperation between companies and universities from both jurisdictions to drive greater success.  Between January and September 2014, there were 12 successful cross-border proposals.  The economic value of that cooperation is €14·9 million.  The average award per partner for a cross-border project is €450,805, which is higher than that for a Northern project partner at €330,509 or a Southern project partner at €373,432.  The current focus is on establishing, developing and extending cross-border partnerships to ensure that we achieve the target of €175 million.  I share the Member's view that we need to continually examine how we can exploit those opportunities for our mutual benefit.

Robin Swann: I thank the deputy First Minister for his statement.  He covered quite a number of topics.  I note that both Health Ministers were there.  Were any updates either sought or given on the recommendation that was made by the international working group on children's cardiac surgery?  Are we still on track to being able to provide those surgeries in Dublin for Northern Ireland children, as recommended in that working group's report?

Martin McGuinness: I absolutely understand the Member's interest in this issue.  We all recognise the challenges that we face in ensuring that we provide first-class services for children who are affected by this medical condition.  I understand that good progress is being made with implementing the international working group's recommendations.  The Executive have allocated £1 million from their change fund towards the cost of establishing the all-island congenital heart disease network.
The network board has met twice since 1 April 2015.  It has formed subgroups to plan and implement the phased transfer of surgery and cardiac catheterisation to Dublin from Belfast and to strengthen the cardiology hub in the network at Belfast children's hospital.  However, we remain reliant on the majority of elective procedures being carried out by specialist heart centres in England until sufficient capacity has been developed in Dublin to accommodate our patients.  Therefore, we look forward to the expansion of the service in Dublin.  Once in place, like the new radiotherapy centre at Altnagelvin, it will be a further example of how close cooperation can deliver improvements to public services North and South.

Mr Speaker: Thank you, deputy First Minister.  That concludes questions on the statement.
Before we move to the next item of business, I would like to inform Members that as today's sitting is likely to be quite late, the Whips have agreed to a shorter lunchtime suspension.  We will, by leave of the Assembly, be suspending at 12.30 pm until 1.30 pm.

North/South Ministerial Council: Aquaculture and Marine

Kieran McCarthy: On a point of order, Mr Speaker.  I am sorry for intervening, but I was looking for a statement earlier on.  Has it been published?  Where is it?  We know nothing about what is going to be said.  Did anybody get it?

Mr Speaker: I am informed that the statements were, in fact, lodged in time.  I just cannot explain if you have not been able to access it at this point in time.

Kieran McCarthy: So they are available, Mr Speaker?

Mr Speaker: Yes, they are indeed.

Kieran McCarthy: Thank you.

Michelle O'Neill: Go raibh maith agat, a Cheann Comhairle.  I can confirm that the statements are in the pigeonholes.  Apologies if maybe they were late into the pigeonholes but, as you said, they were there on time.
With your permission, Cheann Comhairle, I wish to make a statement in compliance with section 52 of the 1998 Act regarding the twenty-seventh meeting of the North/South Ministerial Council (NSMC) in aquaculture and marine sectoral format, in Armagh on Wednesday 27 May.  The Executive were represented by Minister Mervyn Storey and myself.  The Irish Dublin Government were represented by Joe McHugh TD, Minister of State at the Department of Communications, Energy and Natural Resources.   We received apologies from Minister Alex White, who was unable to attend.  I chaired the meeting.  Minister McHugh offered his best wishes to the First Minister and wished him a speedy recovery.  This statement has been agreed with Minister Storey and I am making it on behalf of us both.
Ministers received a progress report on the work of the Loughs Agency from its chairperson, Winston Patterson, and its chief executive, John Pollock.  We welcomed the report on the activities of the agency and noted its ongoing conservation and protection efforts and continued participation in the climate change adaptation initiative.  We were pleased to learn that the Loughs Agency has successfully prosecuted across a range of offences, including illegal fishing, pollution and removal of gravel.  Thankfully, enforcement staff have not faced any violent threats.
The Council was given an update on the survival of the native Lough Foyle flat oyster.  The spring stock assessment has been completed.  All oyster beds in Lough Foyle were surveyed.  Initial findings suggest that the spat that settled last autumn has survived well, with very little evidence of mortality.  We were pleased to note that there was no evidence of any unusual mortality in the adult oyster stocks last winter.  We were also pleased to hear that the Loughs Agency has already engaged with local fishermen in the run-up to the opening of the fishery and that further communication with these stakeholders is planned.  Tribute was paid to the chair, the chief executive and their team for making the decision to partially reopen the oyster beds at the end of last year.
We were provided with an update on the management agreement.  The ongoing jurisdictional issue has been discussed with the Foreign and Commonwealth Office (FCO), and an exchange of views has occurred.  Further communication from the FCO is awaited.  Minister McHugh undertook to raise the matter with the Minister for Foreign Affairs and Trade.  Minister Storey and I offered our support in an attempt to expedite the outstanding issues.
In parallel with the ongoing discussions on the jurisdictional issue, the Loughs Agency continues to engage with other relevant agencies in developing an implementation plan that will address the operational issues.  The Council noted the progress made in relation to the agency's financial statement for 2013 and its business plan for 2016.
The NSMC welcomed the successful completion of the €8 million EU INTERREG IVa-funded IBIS project.  That was marked with a two-day event in Newry hosted by the agency and its project partners the University of Glasgow and Queen's University Belfast.   Students presented their research findings, which covered a wide range of topics, such as aquaculture and fisheries management.
Ministers received a very informative presentation on the sustainable development fund.  This small grants scheme provides support for small-scale capital investment, training and events.  The Council acknowledged the significant contribution that the scheme has made in providing sustainable social, economic and environmental benefits to the communities of the Foyle and Carlingford areas.  We were impressed with the detailed report that was given on the activities of the Loughs Agency in promoting and marketing the Foyle and Carlingford areas, including angling development initiatives, marine tourism, education and outreach events.
We paid tribute to the agency for its efforts and the partnerships that it has developed with funding partners and others to promote and develop the Foyle and Carlingford areas.  We also noted its success in securing EU funding and its plans to avail itself of future funding initiatives.
The Council noted the Loughs Agency’s annual report and draft financial statements for 2014.  It also noted that, following certification of the financial statements by the Comptrollers and Auditors General, they will be laid before the Assembly and both Houses of the Oireachtas.  Ministers approved the continuation of the framework that is designed to support the Loughs Agency in dealing with emergencies, such as a serious pollution incident, for a further period of one year with effect from 20 July this year.  Ministers agreed to review the operation of that procedure, including its possible renewal, based on a report from the Loughs Agency and the sponsor Departments, before 20 July next year.
The Council agreed to meet again in aquaculture and marine sectoral format in the autumn.

William Irwin: I refer the Minister to paragraph 11 of her statement and the management agreement between the Foreign and Commonwealth Office and the Department of Foreign Affairs and Trade in Ireland.  She will know that that agreement is required to enable the agency to carry out its job fully.  Will she outline what progress has been made since the issue was last discussed in the Assembly during the ministerial statement in February 2015?

Michelle O'Neill: The Member will be aware that that issue has been going on for a number of years and that we are obviously anxious to resolve it.  Licensing is one of the functions of the Loughs Agency, and, to date, it has not been able to assume that function due to jurisdictional, legal and policy issues.  We discussed that during our meetings, and, at the recent NSMC meeting, we had quite a lengthy exchange on the actions and on trying to put as much pressure as we can on the Foreign and Commonwealth Office.  We have had some communication with that Department, and Minister McHugh said that he will raise the issue with the relevant Minister in the Dáil.  We need progress on that issue.
We will continue that conversation with the Foreign and Commonwealth Office.  Alongside that work and in parallel with the ongoing discussions on the jurisdictional issues, the Loughs Agency continues to engage with other relevant agencies to develop a management agreement.  The outworkings of that will address the practical and operational issues that may arise.

Oliver McMullan: Go raibh maith agat, a Cheann Comhairle.  I thank the Minister for her detailed presentation.  Minister, the statement shows that the Loughs Agency has had successful prosecutions.  Will you give us more detail on that?

Michelle O'Neill: I start by saying that we are pleased that the Loughs Agency staff have not faced any threats of violence or any incidents over the last number of years.  I am sure that everybody in the Chamber will agree that we want that situation to continue.
The Loughs Agency has been very successful with prosecutions.  Currently, 19 outstanding cases that date back to 2014 are being pursued by the agency.  Those cases can be broken down into the five categories of oyster, netting, angling, obstruction and pollution cases, and the agency is proactively pursuing all of them.  As I said, I certainly want to put on record the fact that Loughs Agency staff have not faced any violent threats in recent times.  We can all welcome that.

Karen McKevitt: I thank the Minister for her statement.  I want to point out the two-day conference that was held in Newry.  The Minister spoke about its success and the fact that it celebrated 70 years of scientific research that has been undertaken through the IBIS project.  There have been successes with that €8 million EU-funded project, with objectives delivered and information generated, particularly on shellfish resources.  Paragraph 20 of the statement notes the Loughs Agency success in securing EU funding and:
"its plans to avail of future funding initiatives."
Will the Minister give any details on whether further research, through a project similar to IBIS, will be available through that funding?

Michelle O'Neill: That is certainly the plan.  The IBIS project has been extremely successful, and it was right and proper that we celebrated those successes.  The agency has been really successful in drawing down EU funding, and I expect that to continue into the future.
You will probably be aware of some of the other significant EU funding opportunities that it has availed itself of.  Those include around €4 million for marine tourism and angling development and the €8 million that it received for the IBIS project.  It is certainly looking to strengthen that work and to work in partnership, particularly with local councils, communities, businesses and stakeholders, on further opportunities and research opportunities.  The agency will look at all the EU opportunities, but particularly at INTERREG funding, Peace funding, the rural development programmes and funding for marine affairs and fisheries — the EFF.  There are plenty of opportunities.  It is actively working up those plans, and I have no doubt that it will be as successful in future years as it has been in the last number of years.

Jo-Anne Dobson: I thank the Minister for her statement also.  Looking to the future, what percentage of her Department's savings does she intend to realise from the Loughs Agency?

Michelle O'Neill: The Loughs Agency, like every other agency, has been tasked with finding efficiencies and has done so very successfully.  Just recently it has been working towards its 2015-16 budget, which will be finalised in the coming period.  I do not have the actual figure as a percentage of the budget, but I will be happy to provide that to the Member.  Like every other agency of the Department, the Loughs Agency has been asked to find where it can be more efficient and do things better.

Kieran McCarthy: I thank the Minister for her statement, late though it may have been.  She said that:
"Ministers received an informative presentation on the sustainable development fund."
Is this fund widespread or is it simply for the Foyle and Carlingford areas?  What is the value of the small grant?

Michelle O'Neill: It is particularly for the Lough Foyle and Carlingford areas so that projects can be developed to work in partnership with communities and business.  The sustainable development fund grant goes up to £7,500.  Some of the projects featured in the presentation that we received benefited from the fund.  Those are fantastic projects, which are about enhancing activities on the lough, developing business opportunities for people on the lough and working with young people on the water, canoeing and so on.  Quite a range of projects have benefited from the fund, but it is specifically for those areas.

Sydney Anderson: I thank the Minister for her statement.  She mentioned an implementation plan to address operational issues.  Will she elaborate on the other relevant agencies that are involved and the timescale for the completion of that implementation plan?

Michelle O'Neill: As I said in my answer to the Committee Chairperson, we are working our way through the jurisdictional issue and the problem that we have of the Loughs Agency assuming its full role, which it should be playing.  Alongside that, while we are trying to get that issue resolved — it has been ongoing for quite a number of years — we are working in parallel with all our partners on the ongoing operational and practical issues on the ground.  We are working with fishermen, angling organisations, councils and a range of partners that the Loughs Agency engages with regularly.

Declan McAleer: Go raibh maith agat, a Cheann Comhairle.  Does the Minister share my view and, indeed, the view of many that the Loughs Agency can and does play an important role in maximising the value of natural assets for angling development, education and wider community benefit?

Michelle O'Neill: Yes, I absolutely concur.  The agency continues to provide support to a range of community and business projects, not just through the sustainable development fund but in its everyday work.  The Member will be aware of a quite significant body of work that the Loughs Agency got involved with in his constituency at Lough Macrory, where we had the water recreation activities and where the angling club launched its world championships, I think, in 2013.  That clearly shows the Loughs Agency's track record in wanting to engage with local communities.  The agency is very keen to do a lot more of that and, through the sustainable development fund, to engage in practical working on the ground with young people to educate them about fishing activities and the potential of the water courses.  I am quite sure that that work will continue into the future.

John Dallat: I hope that the Minister will not claim that I am pushing the boat out too far. She will be aware that there is a ferry service across the Foyle that has carried over two million passengers since its inception and gets not one brass penny of public money from the Republic or from this Assembly.  Will she use her ingenuity at a future meeting to find out why one ferry service here gets no funding while the other two get something like £10 million?  Perhaps she will remind Mr McHugh that he is part of the solution.

Michelle O'Neill: I am happy to take up any issue that a Member raises.  It is not something that we have discussed in the NSMC in the past, but I am happy to take a look at it to see whether there is potential for the Loughs Agency in that regard.  One of its key objectives — it is key to what it is all about — is to develop the Foyle and everything to do with the Foyle.  I will be very happy to explore that further.

Sean Rogers: Thanks to the Minister for her statement.  I apologise for missing the start of it.  Minister, a couple of months ago in Clare, an oyster fisherman tragically lost his life when the tides came in on him.  As you know, good communication between land and sea is vital, but, with competing phone signals in the likes of Lough Foyle and Carlingford lough, the mobile phone is not an answer.  Is there any opportunity in the small grants programmes to provide grant aid for a responder device for our oyster fishermen?

Michelle O'Neill: I do not believe that it is within the remit of the sustainable development fund, but I am happy to explore it further.  Obviously, the safety of fishermen on the lough is something that Loughs Agency concerns itself with.  I know that it has partnered with organisations such as Seafish around life jackets and different safety equipment.
I have not been privy to any kind of conversation about responder devices in the past, but I am very happy to explore that because, as I said, Loughs Agency really wants to work with all the stakeholders, particularly the anglers and fishermen who use the lough.  If there is scope and potential for Loughs Agency to be involved in that, perhaps in partnership with the likes of Seafish, I am sure that it would be very happy to explore that.

Executive Committee Business

Water and Sewerage Services Bill: First Stage

Danny Kennedy: I beg to introduce the Water and Sewerage Services Bill [NIA Bill 51/11-16], which is a Bill to amend, and to confer power to amend, the Water and Sewerage Services (Northern Ireland) Order 2006; and for connected purposes.
Bill passed First Stage and ordered to be printed.

Health and Social Care (Control of Data Processing) Bill: First Stage

Simon Hamilton: I beg to introduce the Health and Social Care (Control of Data Processing) Bill [NIA Bill 52/11-16], which is a Bill to make provision about control of data processing in relation to health and social care.
Bill passed First Stage and ordered to be printed.

Mental Capacity Bill:  Second Stage

Simon Hamilton: I beg to move
That the Second Stage of the Mental Capacity Bill [NIA 49/11-16] be agreed.
In recent weeks, I have been setting out my vision for the future of health and social care in Northern Ireland.  That vision involves, and, indeed, demands, reform, transformation and innovation across the sector.  The Mental Capacity Bill delivers on all three of those.  Developed jointly by my Department and the Department of Justice, the Bill is a first example of how, when we work together, we can overcome challenges and do things that will bring about real change for the better.  I pay particular tribute to Minister Ford and his Department for all the hard work and dedication they have contributed in bringing the Bill before the Assembly today.
As far as I am aware, the Bill adopts an approach that has not been attempted anywhere else in the world.  It has been a hugely complex and challenging process.  As many Members will know, the Bill has been a long time in development.  The reasons for that are clear and will, I think, emerge from our debate today.
The Bill provides a framework that will govern some of the most serious decisions that professionals in the health and social care sector and others make on a daily basis; decisions such as whether it would be best for someone to have a major operation that they are unable to consent to, or whether to place restrictions around a person's care or treatment to the extent that the person is, in fact, being deprived of his or her liberty.
As the scrutiny process begins, the Assembly can have confidence that the Bill has had the benefit of extensive stakeholder engagement and input, initially by those involved in the Bamford review, and, in more recent years, by the various stakeholder groups that met on many occasions to consider papers and proposals from both Departments.  I thank everyone on those groups for their contribution to the development of the Bill and those who took the time to respond to the various consultation exercises and attend the many events held throughout Northern Ireland last year after the draft Bill was published for consultation.  Many of the innovations in the Bill began with our extensive, transparent and responsive approach to consultation.  The Bill, as introduced, is all the better because of that engagement.
The Mental Capacity Bill seeks to create a single piece of law that puts people's rights first when decisions, big and small, need to be made about their lives.
Respect for the choices and decisions that we make about our own life is something that many of us take for granted.  However, for some, it is far from the reality of their day-to-day life.  The Bill seeks to change that.  The principles in Part 1 on the key concepts of capacity and best interests are the starting point.  Significantly, these principles take account of developments since the Bamford review, such as the ratification of the United Nations Convention on the Rights of Persons with Disabilities.  They include a requirement up front for people to be given every practicable help and support to make decisions for themselves.  This is because by far the best outcome when it comes to making decisions about our own healthcare, treatment or even our money is for each one of us to make those decisions for ourselves.
The Bill recognises that decisions based on informed consent are not always possible, so there is a need to provide for situations when judgements need to be made about what would be best for someone.  However, crucially, this can occur only when it is properly established that a person lacks capacity to make a particular decision by themselves.  In other words, the onus is on the person intervening to prove a lack of capacity, not the person themselves.
Under the Bill, assumptions cannot be made about someone's capacity on the basis of any condition "or any other characteristic" that they might have.  It is expressly stated in clause 1 that whether a person has capacity to make a decision can be determined only by reference to clause 4 and his or her inability to make that decision because of an impairment or disturbance in the functioning of the mind or brain.  This could be caused by any number of things, temporary or permanent, but the key point is that it does not matter what causes the impairment or disturbance.  It is the inability to make a decision because of it that matters.
Part 1 also contains the principle that anything done for a person who lacks capacity to make a particular decision must be done in his or her best interests.  Clause 7 sets out the list of factors that must all be balanced in order to comply with this principle.  I do not intend to go through them all today, but I want to highlight to Members that it specifically requires "special regard" to be given to what the person's "wishes and feelings" might be.  This was one of the key changes made to the draft Bill following the consultation.
Part 2 is the core of the Bill.  It gives doctors, nurses, social workers, carers and others legal cover for things that they do every day in relation to people's care, treatment or personal welfare.  These are things that would require people's consent if they had capacity, such as dressing them, taking them for a dental appointment or giving them an anaesthetic or injection of some kind?.  This legal cover is not new.  It already exists in common law, but it has been found wanting by the courts when relied on in the past to do some of the more serious things in a person's life:  for example, things involving placing significant restrictions on a person's movements to the extent that a person is being deprived of their liberty.  Part 2, therefore, requires additional safeguards to be put in place in relation to serious interventions in someone's life.  They include requiring a formal assessment of capacity to be carried out or a second opinion to be obtained; consulting with someone’s nominated person or an independent advocate; and getting very serious interventions authorised by the relevant health and social care trust.
Finally, Part 2 also provides a right to seek a review by a tribunal of any authorisation.  Safeguards such as nominated persons, for example, do not exist under the current legal framework, nor do the safeguards in Part 8 that deal specifically with research involving a person who lacks capacity to consent to it.  They therefore represent a major change in the law — a significant change for the better that many of our people will stand to benefit from if the Bill is made law.
This brings me to perhaps the most ambitious change that the Bill will bring about.  The new legal framework in the Bill will apply to all adults.  Importantly, this includes those whose choices about their care and treatment can currently be overridden by professionals acting under the powers in the Mental Health Order.  Other jurisdictions have retained their separate mental health legislation when legislating for adults who are unable to make decisions for themselves.  This Bill takes a very different approach for two key reasons:  first, it avoids the confusion that having two sets of rules inevitably brings; secondly, and vitally, it will help to reduce the stigma felt by those who have, for many years now, been treated differently because they suffer from mental disorder.  This fused approach is what the Bamford review strongly advocated and what stakeholders have repeatedly told us is the right way forward.  It is that which makes the Bill unique and innovative.  Other jurisdictions will watch the Assembly with interest as the Bill progresses through its legislative stages.
However, it is not just people in the health and social care sector who will need to be aware of the Bill.  There are also significant safeguards contained in Parts 5 and 6 to do with making decisions about money that are relevant to banks, building societies, post offices and the legal profession.  The new lasting powers of attorney system provided for in Part 5 will allow anyone over 18, if they have capacity, to appoint someone they trust to make decisions about their finances.  That new system will replace the existing enduring powers of attorney system and will be extended to decisions about health and welfare matters.  Under Part 6, the High Court will also have powers to take one-off decisions or, where there is a need, to appoint a deputy to make ongoing decisions.
That leads me to Part 7, which also involves the justice system.  Part 7 requires the Department of Justice to appoint a public guardian.  That officer will have a number of functions, including establishing and maintaining a register of attorneys and deputies and supervising the activities of deputies.
Parts 9 and 10 also deal with matters falling to the Department of Justice.  Part 9 creates powers for police constables to remove a person from a public place and take him or her to a place of safety.  Those powers will replace the current powers in the Mental Health Order and will apply if the person appears to be in need of immediate care or control.  Once in a place of safety, the police can detain the person there.
The police will also have powers, under Part 9, to transfer people between places of safety.  Certain conditions will apply before those powers can be exercised.  The police constable must reasonably believe that the person lacks capacity to make the decision around their removal or, as the case may be, their transfer or detention.  They must also reasonably believe that the removal, transfer or detention is in the person's best interests.  Those conditions are new.  The current powers also allow a person to be detained in a place of safety for up to 48 hours.  The new powers reduce that to 24 hours.  Finally, provision is also made to ensure that further protections, based on those in the Police and Criminal Evidence (Northern Ireland) Order 1989, are afforded to any person detained in a place of safety under the powers in Part 9.
Part 10 replaces the current court powers in the Mental Health Order around remand and sentencing, including in "unfit to plead" cases.  Unlike the current powers, the new powers take into account, where appropriate, a person's capacity to make decisions about their medical treatment.  That reflects the recommendations made in the Bamford review.
The current hospital orders in the Mental Health Order will be replaced by new public protection orders, which can be made with or without restrictions.  The purpose of the public protection order is to provide flexibility to the court in cases where a person has been convicted of a crime but is not considered culpable enough to be sent to prison, but if not detained in an appropriate place, would pose a risk of serious physical harm to other people.  That risk, however, must be linked to the person having an impairment or disturbance in the functioning of the mind or brain.
Part 10 also creates a new court disposal on conviction, which is known as a hospital direction.  A hospital direction can be made by the court if it is considered that a custodial sentence is appropriate but the person requires medical treatment.  In those circumstances, the court can direct that the person be taken to hospital and be detained there.  If the person recovers sufficiently to no longer require hospitalisation, he or she must be returned to custody to serve the rest of the sentence also imposed by the court.
Part 10 also makes provision for the conveyance to hospital of individuals who are detained in prison, the young offenders' centre and the juvenile justice centre.  Like the new court powers, the new transfer powers take account of a person's capacity to make decisions about their medical treatment, where it is appropriate to do so.  Any person subject to detention under the powers in Part 10 has the right to seek a review of that detention by the review tribunal that I referred to earlier.
Finally, Mr Speaker, I want to cover briefly the remaining parts, Parts 11 to 15.  Part 11 carries forward the current facility to transfer patients who are detained in hospital between Northern Ireland and the rest of the United Kingdom.  Part 12 makes amendments to the Mental Health Order for persons aged 16 and under.  Those amendments add to the safeguards that already exist for children in that order and in other legislation, such as the Children Order.
Part 13 creates new offences, such as the offence of ill-treatment or neglect of persons who lack capacity.  Parts 14 and 15 contain miscellaneous and supplementary provision.  For example, Part 14 gives effect in Northern Ireland to the Convention on the International Protection of Adults.  It also makes clear that there are some decisions that are just too personal to fall within the scope of the Bill, such as consenting to marriage.
It will, I hope, be abundantly clear to Members at this point that the Bill, all 295 clauses and 11 schedules, is one of the largest ever to come before the Assembly.  It may also be the most far-reaching in scope and potential impact, but the Bill itself is only one part of the jigsaw.  The accompanying code of practice will be a key document.  Work has already begun on that, and on the training and awareness-raising programme needed to make the changes happen on the ground.
I do not underestimate the scale of the challenge that the Bill presents.  In particular, I am acutely aware of the exceptionally difficult financial situation that we face.  However, those challenges should not deter or deflect us from the crucial task of reforming our health and social care system.  Indeed, the need to reform and modernise is more vital now than ever before.  We should also not lose sight of the fact that, with this Bill, we are leading the way on a global stage, with what is widely recognised as being one of the most forward-thinking pieces of social legislation to be brought before any legislature.
I conclude by commending the Assembly for the early establishment of the Ad Hoc Joint Health and Justice Committee, which has already met to hear directly from officials about the Bill's detail.  The Committee has my and Minister Ford's full support and cooperation, and that of our Departments, as it takes on the important and difficult job of scrutinising the Bill.  I look forward to hearing what the Committee and Members have to say.

Alastair Ross: As the House is aware and the Minister has just said, the Ad Hoc Committee, comprising members of the Justice Committee and the Health Committee, has been established by the Assembly to consider the Mental Capacity Bill.  The Committee has met on five occasions so far, and we began our work by taking introductory briefings from both Departments on the various aspects of the Bill.
As many Members will be aware, the background to the Bill is primarily the Bamford review, which, in 2007, concluded that there should be a single legislative framework to reform the existing mental health legislation and introduce capacity legislation to Northern Ireland for the first time.
Mental health law is broadly concerned with the reduction of the risks flowing from mental disorder to the patient and other people, while mental capacity law is designed to empower people to make decisions for themselves wherever possible and to protect people who lack capacity.
The key purpose of developing a single legislative framework to cover both mental ill health and mental capacity is to attempt to reduce the stigma and inequalities that sometimes flow from having specific mental health legislation.  However, the production of such legislation is in no way a straightforward task, and, as the Minister acknowledged, Northern Ireland is the only place in the world to attempt such an approach.  For example, while England brought in the Mental Capacity Act in 2005, it does not cover the treatment of mental illness.  England has maintained two distinct legislative frameworks.  The closest that anywhere in the world has come to contemplating the approach that we are moving ahead with is in Victoria in Australia.  Its legislature considered the issue of bringing together mental health law and mental capacity law in 2012 and produced a report on the issues.  However, it decided not to proceed further and concluded that it was a matter for ongoing debate.  The difficulty that it encountered was in coming to a position on whether having separate mental health legislation amounts to unjustifiable discrimination against people with a mental illness or whether it in fact constitutes a special measure for the benefit of people with a mental illness.
Therefore, it is important to note up front the complexity of the task that we are facing in fusing mental health and mental capacity legislation, given that it will bring about a fundamental change to the way in which people with a mental illness receive treatment.  Indeed, it strikes me that the decision, made by the Health and Justice Ministers, to be the first in the world to try that approach might be described by Sir Humphrey Appleby as a "very courageous decision, Minister".
Given the complexities of the issues, and the fact that there is nowhere else in the world where this type of legislation has already been introduced that we can look to as a model, there are genuine concerns around the timescales associated with the Bill.  It has been introduced in the Assembly for scrutiny during the fifth year of what was originally to have been a four-year mandate.  Since the start of this mandate, the timescales have continually slipped back.   At one stage, the Health and Justice Committees were informed by their Departments that the Bill would be introduced no later than December 2013.  We are now 18 months past that date.  I therefore think that it is a legitimate question whether the introduction of the Bill in this mandate was the preferred option for both Departments and whether it will result in the best outcomes for the legislative process.
However, as is often said in these parts, we are where we are, and the Bill has been introduced nine months before the end of the mandate.  The Committee will need to report on it by the end of January at the very latest to allow the completion of the other legislative stages before dissolution.  When we take out the recess periods, that allows only about four months for scrutiny of a Bill with, as the Minister said, 295 clauses and 11 schedules to it and that aims to create a legislative framework that is so complex and so controversial that the rest of the world has decided against doing it.
While the Committee fully understands and accepts its scrutiny responsibilities, it is concerned about the short space of time it has been left with to complete its task.  There are also concerns about the level of consultation that has taken place on some aspects of the Bill prior to its introduction to the Assembly.
In May 2014, the Health and Justice Departments launched a public consultation providing draft clauses in relation to how the Bill will relate to civil society.  Stakeholders therefore had the opportunity to make comments about specific clauses relating to things such as the principles of the Bill, protection from liability, safeguards, the role of independent advocates, lasting powers of attorney and so on.  However, on the justice side, draft clauses were not provided as part of the public consultation.  Instead, the Department of Justice provided its proposed policy approach for those subject to the criminal justice system, covering the following three key areas:  first, police powers to remove persons from a public place to a place of safety; secondly, court powers to impose healthcare disposals at remand and sentencing, or following a finding of unfitness to plead; and thirdly, the powers by which the Department of Justice can transfer prisoners for inpatient treatment in a hospital.
The Departments' analysis of the responses to the public consultation on those issues indicated a range of views, some supportive and some expressing reservations or opposition to particular proposals.  However, given that the first time stakeholders will have seen the detail of the clauses proposed to deal with the three key issues was last week, when the Bill was introduced, it could be anticipated that those will generate a lot of discussion and debate when we reach Committee Stage of the Bill.
There also appears to be an over-reliance on regulations and code of practice in the Bill.  Those have not yet been consulted on and will be introduced through regulation, without the same level of scrutiny by the Committee or the Assembly and, of course, without the ability for the Committee or Assembly to amend.  Given that other Bills have faced similar criticism of late, this is something that both Ministers may wish to consider.  The lack of detail, coupled with the fact that stakeholders have not had much time to examine the current draft Bill will, in turn, add to the task of the Committee in trying to come to a position on issues that really, to date, have been consulted on only in a very broad sense and at a very late stage in the day.
If we look beyond the detail of the Bill itself, there are major question marks around how and when this piece of legislation will be implemented.  The Departments have estimated that between £75 million and £129 million is required in year 1, and between £68 million and £102 million for recurrent costs on an annual basis.  I will repeat that:  the outworkings of the Bill could cost the Executive an additional £100 million each and every year.  While the Committee will, of course, wish to challenge the robustness of those costings and whether they are accurate figures, it needs to be concerned at the order of magnitude we are talking about and whether that is where the Executive's priorities — and indeed where the Justice and Health priorities — will be in the next number of years.
Even the lower estimate of annual costs, at around £70 million, represents a significant pressure on the budgets of both Departments, which seems unattainable at this juncture.  Given the current financial climate, and the likely financial climate in the next four to five years, the question genuinely arises as to whether Northern Ireland will be able to afford the implementation of this piece of legislation.  If we cannot afford it, what happens?  Will we end up rushing through a piece of legislation that could end up not being commenced until a number of years down the line, if at all?
I now want to address some of the key aspects of the Bill itself, beginning with the principles upon which it is based.  The Bamford review recommended that any new legislation should be based on agreed principles, which should be explicitly stated on the face of the Bill.  There were four principles outlined by Bamford; namely autonomy, justice, benefit and least harm.  The Departments’ approach has been to take autonomy as the leading principle, in that the fundamental premise of the Bill is the presumption that all adults have capacity to make their own decisions unless the contrary is proven.  However, in instances where it is determined that a person does not have the capacity to make their own decision about a matter, the principle of best interests governs the course of action that is decided on, on behalf of the person who lacks capacity.
The principles of the Bill are not without controversy, particularly around the concept of &quot;best interests&quot;, which some stakeholders believe conveys an unhelpful sense of paternalism.  Other stakeholders have referenced the emerging impact of the UN Convention on the Rights of Persons with Disabilities, which was ratified by the United Kingdom in 2009.  They have suggested that the focus on substituted decision-making and best interests in the Bill has the potential to impose discrimination against people with disabilities and advocate a move towards a legal capacity support model.
Therefore, right from the very start of the Bill, from Part 1, we, as a Committee, will consider a whole spectrum of views, ranging from those who wholeheartedly endorse the principles to those who have some reservations and those who oppose them outright.
There are also concerns coming forward from the legal community around the practical outworkings of the Bill in terms of things such as lasting powers of attorney, which will replace the enduring powers of attorney provisions.  Organisations such as the Law Society, which held a very useful briefing in Parliament Buildings last Wednesday which I attended, have pointed out that the making of a lasting power of attorney could cost a person in the region of £500, compared to the £100 that it currently costs to make an enduring power of attorney.  If the ability to make an enduring power of attorney is done away with as is proposed under the Bill, the fear is that people will be put off making a more expensive lasting power of attorney because of the cost.
The Law Society posed this question:  why can we not offer people the choice of whether they wish to have an enduring power of attorney, which could be extended to health and well-being, or a lasting power of attorney, which is a more expensive model?  Those types of practical outworkings of the Bill and how they will impact on the public will require the Committee's careful consideration, as will the higher-level concepts around the principles of the Bill.
I will turn to children and young people.  There are a range of concerns about how the Bill will impact on children under 16 and on young people aged 16 and 17.  A range of organisations have questioned the fact that the majority of the provisions in the Bill will only apply to those aged 16 or over in terms of presumed capacity.  Some people have suggested that a lower age could be used, although I think that it is fair to say there is no consensus on what that age would be.  Some organisations that advocate a lower age have not made any specific proposals.  Others have come at the issue more in terms of the practical impact of under-16s who have mental health problems not being able to access certain safeguards that the Bill will provide for adults who lack capacity to make certain decisions.
The Department of Health has attempted to address some of those concerns by proposing a range of amendments to the Mental Health (Northern Ireland) Order 1986, which will still apply to under-16s.  While some of the concerns may have been addressed, there is little doubt that this will continue to be a contentious issue as we move forward, and the Committee will look closely at the provisions in the Bill and how they impact on children and young people.
To conclude, the Committee does not underestimate the task that it has in front of it in the coming months.  We take seriously our responsibility to scrutinise what is the probably the most complex piece of legislation ever to come in front of the Assembly.  Equally, we expect both Departments to work with us and to provide us with all the information that we require in order for us to produce our report on the Bill for the Assembly.  Most of all, the whole House wants to hear whether there is a genuine possibility of getting the Bill into law, given the huge financial pressures that we are under at present and the estimated cost of enacting the legislation.

Rosaleen McCorley: Go raibh maith agat, a Cheann Comhairle.  Ba mhaith liom fáilte a chur roimh an Bhille seo.  I welcome the introduction of the Bill.
The Ad Hoc Committee has recently begun the task of scrutinising the Mental Capacity Bill, which has arisen out of the Bamford review of 2007, the main recommendation of which called for a single comprehensive legislative framework for the reform of mental health legislation and for the introduction of capacity legislation in the North.  The report concluded that that would help reduce the stigma attached to mental health being dealt with in separate legislation.  It would also allow for improving the protections for people who lack capacity and find themselves in a situation where they cannot make their own decisions in regard to their health and/or personal circumstances.  It would also give protection to those who are within the criminal justice system.
Bheadh cosaint ann fosta do na daoine úd atá sa chóras choiriúil.  It will seek to improve the current legal framework, which does not have stand-alone mental capacity legislation.  Mental capacity issues come under common law here in the North, which provides for an acceptance generally that anyone aged 16 or over has capacity.  A test of incapacity and protection against liability when required to make an intervention in another person's life as long as it is reasonable to assume that the person lacks capacity and that the action to be taken will be in the person's best interests.
Is soiléir, fiú ag an phointe luath seo, an saghas na castachtaí a thiocfaidh chun cinn maidir leis an Bhille seo.  Even at the early outset, the sorts of complexities that will arise out of the Bill are clear.  How, for example, do you determine what is reasonable?  How do you define that?  That is one of the challenges that will arise.  What dictates how you come to a decision on another person's best interests?  The Bill will throw up various legal questions that will, no doubt, be very interesting to explore.  However, they place a very onerous task on those carrying out the scrutiny as these minutiae are all connected to a person, and these decisions will have implications for the health, treatment or personal affairs of that person.  We, as a Committee, have an obligation to ensure that we consider all the foreseeable eventualities that could come from this.
The Mental Health Order 1986 currently governs decisions relating to mental health issues, and it gives statutory powers to remove and detain people in certain circumstances where assessment and treatment of a mental health disorder is required, whether or not a person has capacity.  It is now recognised that this runs contrary to the right to personal autonomy, and so it is clear that reform of the legislation is a positive move forward.  The Bill spells out an approach that will join mental capacity and mental health law in one piece of legislation — something that has never been attempted before in any jurisdiction and has been described as groundbreaking.  Initially, the Department thought about dealing with this via separate legislation, but it became clear from the consultation responses that the desire was overwhelmingly in support of having one comprehensive framework, as envisaged by Bamford.
This is complex legislation, as we have all said.  Throughout Committee Stage, there will be an opportunity for close scrutiny of the clauses to ensure that it fulfils the needs for which it is being created.  Even at an early stage, some issues are coming to light.  Cause 1, for example, states that whether a person is able to make a decision is not:
"determined merely on the basis of any condition"
that they may have.  The Committee is exploring the use and implications of the word "merely" in that context:  for example, does that word appear in the 2005 Act in England?  An bhfuil an focal sin in Acht 2005 i Sasana, mar shampla?  Likewise, clause 4 states that a person can be judged as "unable to make a decision" if they cannot "use and weigh" information as part of the process of making the decision.  The Committee's task here is to examine how, in practical terms, one person would be able to judge whether another person had used and weighed the information before coming to their final decision on any matter.
Clause 7 refers to a person's "rights and freedom of action".  How is the term "rights" being used here?  Does it refer to a person's rights in reference to any particular existing legislation?  If not, how will it be interpreted legally?  Those are the questions that the Committee will seek clarity on as it moves through Committee Stage.
In a general sense, the Bill will facilitate people making plans for their future in case a time should arise when they no longer have the capacity to make decisions for themselves.  That would include decisions relating to healthcare and treatment, property and finance.  Currently, people can avail themselves of making such arrangements through an enduring power of attorney (EPA), which allows for the appointment of a person chosen by an individual to make decisions relating to property and affairs — an arrangement that would continue in the event of loss of mental capacity.  The new legislation will seek to replace the existing EPA with lasting powers of attorney (LPA).  The main difference is that an EPA covers property and financial affairs, whereas the LPA will be more wide-ranging so as to include matters relating to health treatment and care.
In the event of the new legislation taking effect, an EPA will no longer be available, although people who have an existing EPA arrangement can continue with that.  It has also been flagged at this stage that the LPA will be more costly and complex than an EPA, so that will be taken into account as well in the consideration.
Last week, we had a very interesting presentation from the Law Society, which explained these arrangements by providing human examples of what that can mean.  It was shown how life can become extremely complicated when certain circumstances arise, as in the case of a sudden debilitating illness or a serious accident that could result in a person no longer having the capacity to make decisions and where there are no legal provisions in place to cover that.  In a very accessible way, the examples flagged the need for all of us to consider our own arrangements and how we would like our wishes to be fulfilled in such circumstances.
Those are the pertinent questions and matters to which we should be giving serious consideration at a time when we are capable of making such decisions.  We should think about people who may be lying in a vegetative state or in a coma and are now unable to communicate, let alone convey their deepest wishes.  Those are the circumstances that we need to prepare for in advance.  It is very similar to a situation where someone might die without leaving a will and the complications that can arise from that.
In some circumstances, there can be the risk of fraud as well.  There can also be cases where someone who may not have been the person's choice may be able to step in and apply for power of attorney.  So, again, it is about people putting in place arrangements that will lay out how they want their wishes to be carried out.  As I said, those are very weighty decisions, and they are always made simpler when the correct legalities have been put in place.  Where no prior arrangement is in place, such matters will fall to the courts to decide on property and financial matters.
Where a person's care, treatment or personal welfare are concerned, where no such arrangement is in place, the Bill seeks to place the common law doctrine of necessity on to a statutory footing and, further to that, to provide new safeguards to allow for different types of interventions.
There have also been concerns raised about another aspect of the Bill, which is that children under the age of 16 will be excluded from its scope.  The worrying aspect of that is that the new safeguards and protections being created will not apply to children.  It has been said that the Mental Health Order 1986 will be amended to cater for under-16s, pending a review of the Children Order 1995.  That could take a very long time, and, meanwhile, children may be subject to less favourable regulations, including being formally detained.
Bamford also recognised that the Mental Health Order was not fully ECHR compliant.  Is gnéithe dáiríre iad seo den Bhille ar chóir scrúdú grinn a dhéanamh orthu lena chinntiú go mbeidh na socruithe is fearr in áit do gach duine — do pháistí agus do dhaoine fásta araon.  Those are very serious aspects of the Bill that must be fully scrutinised to ensure that the best possible arrangements are put in place for all people, children and adults alike.
As I said, the Ad Hoc Committee has a hugely complex piece of legislation to consider.  It will reflect on all the relevant questions and on concepts such as safeguards; formal capacity assessments; nominated persons; deprivation of liberty; powers of attorney; appointment of deputies; public guardian; the power of the police to remove a person to a place of safety; and criminal justice issues, like remand to hospital and all the added complex issues that surround all those subjects.
I recognise the difficult work that we will face as a Committee, and I look forward to hearing the presentations and listening to all the expert opinions so that we can arrive at the best and most comprehensive legislation for the protection of people in the North.  Molaim an Bille.  I commend the Bill.

Fearghal McKinney: As SDLP health spokesperson and a member of the Health Committee, I support the general principles of the Bill.  The wide scope of the Bill is to be welcomed.  It will directly impact on everyday and more serious decision-making for many vulnerable groups, such as those linked to health, welfare and finance.
Just to give some statistics, in Northern Ireland, we have almost 20,000 people suffering with dementia, 1% of the population suffering from schizophrenia, some 13% suffering from depression and almost 214,000 carers here for people who may lack capacity.  All those people and many others may need important decisions to be made on their behalf, or they may need to make decisions for other people.  It is in that context that we see how important today's Bill will be for those with mental illness and their families and extended families.
For decades, Northern Ireland has lagged behind the rest of the UK in not having a fully tailored legislative framework for mental capacity.  Instead, we have relied on the antiquated Mental Health (Northern Ireland) Order, which wraps mental capacity around mental health disorder in the common law, relying on the outdated principle of necessity.  The concerns of those with mental illness have historically been separated from the treatment of capacity in general.  That remains the case in England, Wales and Scotland, which have proceeded with developing legislation that has been enacted for a number of years.  We have been lagging behind due to the absence of an exhaustive framework.  That has proved problematic in developing the quality of services that we want, and it has not helped to promote public confidence around a very sensitive issue.
It is important to take this opportunity to commend all those involved in bringing forward today's Bill.  It has been an arduous task by any measure, and I am sure the scrutiny by the Committee — it has had five meetings — reflects that.  We should praise all those stakeholders who have engaged with politicians and the consultation exercises and the Ad Hoc Committee deserves recognition, as I have said.
As we all know, the development of the Bill has been a long process, starting back in 2002 with the Bamford review, which was commissioned to examine the best possible way to provide services to people with mental health issues or a learning disability.  It was finalised in 2007 and recommended a single piece of legislation that would provide a framework for reform of mental health legislation.
It is appropriate at this point to mention that the SDLP previously noted its concerns over the Bamford action plans and the appropriate funding being made available to implement them.  To stress that point:  they have not been successfully funded by successive Health Ministers, and there is a broad spectrum of individuals who do not receive the appropriate level of care or support that they need.  It is important that the Assembly reflects on that today.  However, it is positive, in the context of today's debate, to see some outcome from the Bamford action plans.
I welcome the general principles of the Bill, as I have said, and its aim of empowering vulnerable adults with impaired mental capacity to make as many of their own decisions as possible.  I welcome the fact that adequate legislative measures and safeguards are in place to ensure the individual is protected when decisions have to be made on their behalf.  As I have already reflected, it is also positive to see David Ford and the Health Minister embracing the Bamford report to this point and its recommendations by bringing forward the single piece of legislation.
With this Bill, we have an opportunity to be world leaders in setting the best standards achievable for vulnerable adults who may lack, even intermittently, the capacity to make important decisions for themselves.  The Bill has been described as representing a paradigm shift in the approach to the care and treatment of individuals with mental disorders.  No longer will they be treated or seen as a separate class of individual.  Capacity will no longer be defined differently among people, which has to be recognised as a positive move.
Some of these issues have been addressed, but it is important to reinforce them.  There are issues that need to be resolved in this Bill, even at the outset.  As has been reflected, there needs to be clearer provision for people who are aged under 16.  That group will not have rights under the Bill's provisions, and there needs to be clarity over what action will be taken to ensure that young people benefit from having effective safeguards and protection in place on issues relating to capacity.  There are issues involving parental responsibility and its interaction with existing legislation.  That will need to be clarified.
Also, we must ask whether the provisions of the Bill reflect the particular needs of certain groups in society.  Considering the prevalence of dementia in our society, the scale of which I have outlined, and other age-related mental conditions, coupled with the fact that we have an ageing population, we must ensure that action is taken that protects and provides safeguarding and proofing for older people.  In that regard, the Bill calls for suitable and adequate support to be given to individuals when all decisions relating to capacity are taken.  I welcome that approach, but, in fleshing out the guidance, we have to ensure that there is a clear measure of support available, whether that is through minimum standards or otherwise.  We need to ensure that when older people are making important decisions about their future, which often happens in urgent or time-critical situations, they are given the best opportunity to make their own choices.
At this stage, I will focus on the practicalities of the Bill.  Last year, there were serious concerns highlighted by the House of Lords over the implementation of the Mental Capacity Act 2005 in England and Wales, which the Health Minister referred to.  The review concluded that existing cultural and organisational practice amongst all professionals involved in the care of vulnerable adults must change, because they were failing to implement the ethos of the Act.  This concern must also be reflected here today, and the issues of ageism and existing perceptions about learning disabilities must change.  The process of implementing this legislation needs thorough consideration, as it requires a significant amount of education and training across levels of care, including health and social care staff; capacity assessors, as outlined in the Bill; and specialist professionals such as social workers, doctors, hospital staff and all those involved in the criminal justice system.  I would like the respective Ministers to give an indication of what plans exist for facilitating such training and give assurances around funding.
There is an obvious need to ensure at the outset that the various bodies and individuals operating under the Bill are adequately funded and resourced.  The Chair of the Ad Hoc Committee referred to finance and the extra cost, and I am sure that it would be beneficial to have some sort of an economic audit carried out on that because, while some people see everything as cost, could there be savings to be had as well?  Budgets will be cut, and that has been reflected.  We need assurances that the principles of this Bill will be deliverable once the scheme of practice is implemented.
To finish, the SDLP is supporting the general principles of this Bill.  We believe that it is a step in the right direction in giving autonomy to and protecting some of the most vulnerable in society.  However, as we have reflected, some improvements can be made, and we look to further analysis, if you like, by the Ad Hoc Committee and scrutiny of the Bill and the Consideration Stage next in this Chamber.

Jo-Anne Dobson: As the Ulster Unionist Party's health spokesperson, I welcome the opportunity to speak on this important legislation.  However, as already has been mentioned, it is regrettable that it has taken so long for this Bill to come to the Floor, especially as it was proposed as long ago as 2009, following the Bamford review.  This delay not only allowed the two Departments to prevaricate as to their own responsibilities, leading in turn to what I believe was an overdue consultation process, it meant that the Bill faces a challenging legislative timescale.  As the Chair of the Ad Hoc Committee has already said, the problem with passing it through the House at the latter end of the term is that it will inevitably get caught up in a raft of other Bills, especially after the summer recess.  Whilst I think that the Ad Hoc Committee will be able to perform its role, it is regrettable that the Assembly more generally will have less opportunity to examine this important legislation than it would have had if the Bill had been introduced a year or even six months ago.
Nevertheless, there is no doubt about the significance of the Bill and what it proposes.  As has already been said, the Bill develops a single legislative framework, in turn completely overhauling a raft of existing mental health legislation and practices.  Some people looking in may be concerned that the Assembly, along with two of the largest Departments in the Executive, appears to be passing legislation that seeks to determine whether an individual does or does not have the capacity to make crucial decisions affecting them.  There is no doubt that this is a very sensitive area, much like all legislation relating to mental health.  However, I trust that the public, along with those professionals who ultimately will have to engage with this legislation, will be satisfied that there are sufficient provisions in place to ensure that people will be given the maximum support to exercise their own capacity.
The statutory assumption of capacity must always be to the fore of this Bill and its subsequent implementation.  Up until now, whilst the support has been extensive, I do think that, in some circumstances, it will have been too all-encompassing.  We all know from our own constituency work that people with poor mental health often cannot be defined or pigeonholed in a single category.  Circumstances are often complex, emotional and ever-changing.  The blanket protections currently in place have not always recognised this, so, again, I welcome the requirements to always assess the level of capacity.
There are a number of other provisions in the Bill that I and my party very much welcome.  In particular, we welcome the proposed introduction of a new offence of ill-treatment or neglect of a person lacking capacity.  As legislators, we should and must seek to protect the most vulnerable in society.  We hear, all too often across the United Kingdom, horror stories of people with serious additional needs being abused, whether in care settings or in their own homes.  Thankfully, such incidents are rare in Northern Ireland, but given the scale of poor mental health we face as a society, it is essential that we have robust protections in place.
It is important, too, that this Bill provides protections not only for those who lack capacity to make decisions but for those around them, including their loved ones and medical or legal practitioners.
Some of the issues in the Bill will, of course, be more challenging than others.  For instance, the term, "effective advance decision", used in relation to refusals of medical treatment, will need to be handled with great care.  I am aware that the Departments are of the opinion that it is better for courts to determine the rules with regard to advance decisions.  However, my fear is that in the meantime this will only lead to a period of uncertainty while awaiting the outcome of the first test case, so I ask the Minister whether it is possible to elaborate, in the code of practice or elsewhere, on how his Department envisages the term will be applied.
Another aspect of the Bill that has already generated quite a bit of debate, especially among organisations engaging with the Ad Hoc Committee, is the proposed exclusion of under-16s.  I know that this has been covered by most of the Members who have spoken today.  At the moment, I can see why the Department has been keen to exempt young people.  I face the same issue with my organ donation Bill, which I hope to introduce to the House very shortly.  Whether we are talking about organ donation or legislating for capacity, complexity and sensitivity are always heightened when children are involved.  Nevertheless, whilst the Department may have what it thinks to be a valid reason for exempting children from the Bill, I believe that an opportunity has been missed to strengthen the protections.
As has been said, the Mental Health Order 1986, rather than the new system in this Bill, will still apply to children, but the Department has also said that it intends to modify the Order.  The proposed changes to the Order should have been brought forward at the same time as the Bill to allow for all the changes to be looked at holistically as well as, importantly, to provide reassurance to those concerned about the safeguards for children.
In conclusion, Mr Speaker, I too will end with the theme of implementation.  The Bill proposes a major transformation of our mental health laws:  not just reform for reform's sake.  It is essential, therefore, that it is properly implemented both in terms of swiftness and resources.  I am fully aware of the funding pressures that the Minister is grappling with; they are probably worse than he envisaged when he had the easier job of giving out the funding.  However, the historical underfunding of, and underinvestment in, mental health services are still having a major impact on the wider population across Northern Ireland.  Improvements have been made, especially from 2007, but given the scale of the problem, I suspect that it will be many more years before we get to the position we need to be in.
The Bill attempts to update a key element of our existing legislative framework.  I have my concerns about certain aspects of the Bill, some of which I have mentioned, but for now I am satisfied that the Ad Hoc Committee and the Department will continue to ensure that the final legislation is informed, effective and best meets the needs of the people it ultimately applies to.

Kieran McCarthy: On behalf of the Alliance Party and as a member of the Health Committee and Ad Hoc Committee, I warmly welcome the Mental Capacity Bill.  I am pleased — in fact delighted — that it has now reached its Second Stage in the Assembly and has been moved today by our Health Minister, Simon Hamilton.
The Bill is a key component of the implementation of the Bamford review on mental health and learning disability.  Members will be aware of my special and particular interest in this vital legislation.  It will provide a single statutory framework for decision-making and care for physical and mental health conditions.  I also welcome the very strong and important collaboration between the Department of Health and the Department of Justice in bringing forward the legislation.  It proves that Departments can and do work together.
The introduction of mental health-specific legislation first took place almost a century ago.  Since then, people with a mental health difficulty or learning disability have been treated under the law in a fundamentally different way compared with all other health issues such as physical illness.  That has been particularly so on issues to do with consent and the withholding of consent.  Through the Mental Capacity Bill, Northern Ireland has the opportunity to introduce historic legislation that will be a world leader, and I am so proud to be part of that.
The Bill has brought into one piece of legislation the usual provisions of mental health law and mental capacity law.  It is the first time that that fusion approach has been considered anywhere in the world.  If and when these proposals find their way onto the statute book, they will replace the current Mental Health Order for those over the age of 16.  It will bring an end to discriminatory detention and the overriding of people's refusal of treatment if they retain the capacity to refuse.  Those decision-making rights will be on a par with the rights that individuals enjoy at present in common law regarding physical health treatment.
People in Northern Ireland, whether they have mental health difficulties or/and physical health problems, will now have equal rights to make decisions about their treatments.  The new legislation will require that, if people have capacity, they can make their own decision about their treatment and that all possible support to make a decision will be provided.  Northern Ireland will be the first region in the world to achieve such legislation, and it is hoped that other countries around the world will follow our lead.  It is a good news story and shows that together we can produce legislation that can and will be a world leader.
There is a presumption that all persons aged 16 and over have the capacity to make decisions for themselves and, indeed, should be supported to do so.  However, if a person lacks capacity and has not put in place alternative decision-making arrangements, important safeguards should be in place for that person before the state can intervene.  Decisions can then be made regarding a person's health, welfare and financial issues.
The integrated approach is particularly welcome and significant.  The Bamford review recommended that a single Bill should cover mental health and mental capacity issues, as other Members said.  A single Bill will provide safeguards for all people who lack capacity at any point in their lives, whether from a physical condition or a mental health condition.  That means that there will no longer be any discrimination for those who lose capacity for reasons of a mental health difficulty.  That will be in place for all of us and our families so that, when one of us or one of our family members suffers from a lack of capacity at any time in our lives, there will be non-discriminatory legislation in place, no matter what the source is of our lack of capacity.  Our approach in Northern Ireland, therefore, stands in contrast to the situation in England and Wales with the Mental Capacity Act 2005, and in Scotland with the Adults with Incapacity (Scotland) Act 2000.
Notwithstanding the efforts and commitment of many people and organisations, stigma and discrimination for people with a mental health problem still persist, unfortunately, in our society.  Discrimination against people with a mental health problem is entrenched in existing mental health legislation, with double standards on loss of liberty.
Those in the general population have the right to refuse treatment should they wish to do so, but mental health service users do not.  The inherent stigma and discrimination in having separate mental health legislation is completely unacceptable.  It is unequal.  We need to and must provide equality for all.
We are also aware that there is much work to do on this.  Society as a whole and government need to take clear responsibility for ending such discrimination.  It is incumbent on us all, whether professionals or members of the public, to do everything in our power to eliminate such stigma and discrimination.  This makes the introduction of this game-changing Bill all the more imperative.  People with a mental health difficulty will no longer be under separate mental health legislation.
There is currently no capacity legislation in Northern Ireland.  A golden opportunity has been grasped to ensure that this unique new capacity legislation will be for all in our society.  We now have a single piece of legislation for people who have a physical health problem and lose capacity; people with a mental health problem who lose capacity; people with physical and mental health problems who lose capacity; people who are vulnerable; and all, including those in the criminal justice system, who lack capacity.  No group in society is excluded from the capacity legislation.  Northern Ireland will be the only place in the world where this happens.  That is historic indeed.
The Bill is, therefore, for all of us.  At any point, any one of us, whether in the Assembly or in the community, could find ourselves lacking the capacity to make decisions on our health, welfare or finances.  The Bill provides protection for all of us, and, in particular, it will provide non-discriminatory protection when we are at our most vulnerable.  At one stage, it seemed that we, too, in Northern Ireland would revert to having separate Bills, so I am pleased that we are adopting the more innovative and potentially transformative approach instead.
How did this all come about?  The very important work involving very many people commenced at the start of the century with the vision of Professor David Bamford and his colleagues.  In October 2002, the Health Department initiated a major wide-ranging and independent review of law, policy and provision affecting people with mental health needs or a learning disability in Northern Ireland, which, nowadays, is referred to as the Bamford Review of Mental Health and Learning Disability.  I can well recall being at the launch of the Bamford report some time ago and feeling euphoria and excitement.  We are now on the journey to implement what Professor Bamford and his colleagues called for.  I pay tribute to the vision of Professor Bamford, who, sadly, passed away before his work was completed.  His role as chair was taken over by his colleague Professor Roy McClelland OBE, professor of mental health at Queen's University, who, subsequently, chaired the board of experts appointed by the Minister to champion the Department's response to the Bamford proposals.  He is also a member of the project board overseeing the development of the new mental capacity legislation.  Arguably, no other legislation has come to the Assembly after so much preparation and engagement with experts, service users and other key stakeholders.
Equality lay at the heart of the Bamford review, and its vision was about valuing all who have mental health needs or a learning disability.  That included rights to full citizenship, equality of opportunity and self-determination.  The Health Department and the Department of Justice have responded to the challenge, and we welcome that.  The Bill maintains a high degree of fidelity to the Bamford vision, including the fundamental rights to equality and dignity and in how the officials have conducted their work, particularly their accessibility, inclusivity and openness.
The Bill's ethos is to provide equality in all circumstances and for all aspects of a person's needs — financial, welfare and health, including mental health.  The proposed legislation is also principle-based. Those principles are set out at the start and underpin the entire Bill, and the Minister mentioned them in his introduction.  The first is that a person is assumed to have capacity unless it is established otherwise.  That enshrines in statute what is referred to as the common law presumption of capacity.  Nobody should be deemed to lack capacity unless all practical help and support has been given to an individual to make a decision for him- or herself without success.  Making an unwise decision does not mean that a person lacks capacity. The second principle is establishing and acting in a person's best interests.  The person intervening in someone's life must take into account the person's past and present wishes and feelings, his or her beliefs and values and any other factors likely to influence the person's decision if he or she had capacity.  In addition, under the best interests principle, the person making the determination must, in relation to any act or decision that is being considered, have regard to whether the same purpose could be achieved in a way that was less restrictive of the person's rights and freedom of action.
While the legislation will be ground-breaking, we also have to recognise that, in the absence of the legislation, we are falling behind many other jurisdictions. There is a real imperative to ensure the progression of the Bill as quickly as possible and delivering its passage before the conclusion of this mandate.  I have every confidence in us all being able to conclude and deliver this important legislation for the benefit of those in our community with mental heath problems and learning disabilities.
In implementing the Bill, education in the form of special training and raising public awareness will be essential.  Training will need to be provided for health and social care staff, including specialist staff such as capacity assessors.  It will be important for that requirement to be fully supported with the necessary resources and the views of the full range of stakeholders taken on board.  That will ensure that the full benefit of the Bill can be achieved.
I commend the commitment of all involved in bringing the Bill to this stage.  I look forward to progression to the next stage of this important Bill.

Mr Speaker: The Business Committee has arranged to meet immediately after the lunchtime suspension.  I have received agreement from the Whips to reduce the lunchtime suspension to one hour.  I propose, therefore, by leave of the Assembly to suspend the sitting until 1.30 pm.  The first item of business when we return will be the Second Stage of the Mental Capacity Bill.  The next speaker will be Mr Alex Easton.
The debate stood suspended.

The sitting was suspended at 12.33 pm.
On resuming (Mr Principal Deputy Speaker [Mr Newton] in the Chair) —

Alex Easton: I welcome the Second Stage of the Mental Capacity Bill, which is being scrutinised by the joint Ad Hoc Committee made up of Health Committee and Justice Committee members.  The Bill has 295 clauses and 13 Parts.
While mental capacity legislation has been introduced in other parts of the UK, mental capacity issues in relation to health and welfare interventions largely continue to be governed by the common law in Northern Ireland.  That provides for a presumption of capacity in persons aged 16 and over, a test of incapacity and protection from liability when intervening in somebody's life, providing that it is reasonably believed that the person lacks the capacity to consent to the intervention and it is in his or her best interest.  Those rules do not, however, apply to decisions governed by the Mental Health (Northern Ireland) Order 1986, under which there are clear statutory powers to remove and detain people for the assessment and treatment of mental disorders, provided that certain criteria are met, regardless of whether the person has capacity.
A number of factors have been driving the need for legislative changes in this area in Northern Ireland.  We are out of step with other parts of the United Kingdom, and there is no mental capacity legislation in Northern Ireland.  That was highlighted in the report 'A Comprehensive Legislative Framework', which was published in 2007.  That was one of a series of reports that came out of the review commissioned by the Department of Health of the delivery of mental health and learning disability services across Northern Ireland.  That review was known as the Bamford review.
The key recommendation in that 2007 report was:
"There should be a single comprehensive legislative framework for the reform of Mental Health legalisation and for the introduction of Capacity legislation in Northern Ireland."
The report concluded that that would help to reduce the stigma associated with having separate mental health legislation and would provide an opportunity to enhance protections for persons who lack capacity and are unable to make specific decisions about their health, welfare or finances, including those subject to the criminal justice system.  The report also recommended that the new single legislative framework should be based on agreed principles that have regard to the dignity of the person and provide equality in all circumstances in which a person's autonomy might be compromised on health grounds.
The objective of extending a mental capacity approach to healthcare decisions to the criminal justice system is to comply with the recommendations of the Bamford review.  The Bamford review recommended a legislative framework that integrated capacity and mental health legislation that was applicable to all in society, including those in the criminal justice system.  With that framework in mind, the review made specific recommendations on the various interfaces between the health and criminal justice systems.  The Department of Justice therefore chose to draft criminal justice provisions on the basis of those recommendations.  That meant the creation of a capacity-based approach to care, treatment and personal welfare for those aged 16 or over who are subject to the criminal justice system.  In addition, where possible, the Department of Justice aimed to build a legislative model that did not contain potentially stigmatising references to mental disorder.  As part of that last comment, I ask the Minister why the Bill does not include those who are below the age of 16.  Does that not complicate the Bill for the future?
Taking account of the interfaces between the mental health and criminal justice systems, the Department of Justice also sought to retain the existing statutory powers available within the system to transfer individuals to the health service for medical treatment.  Those powers include police powers to remove persons from a public place to a place of safety; court powers to impose particular healthcare disposals on offenders at remand, sentencing or following a finding of unfitness to plead; and departmental powers to transfer prisoners for inpatient treatment in a hospital.  While the Department of Justice wishes to retain those powers, it also sought to create provisions that respect the autonomy of individuals who retain the capacity to make decisions about their medical treatment, while providing safeguards and protections for persons who lack the capacity to make those decisions.
The Department of Justice also considered amendments to the civil law to take account of any introduction of capacity legislation.  Those changes include the introduction of a new office of the public guardian, additional powers for the High Court and the restructuring of the mental health review tribunal.  A joint public consultation on the draft civil provisions and policy proposals on the criminal justice aspects of the Bill was launched in May 2014.  The consultation closed in September 2014, having received 121 formal responses.  Five public events were held across Northern Ireland as well as approximately 40 additional meetings or events organised by key stakeholders.
Initially, the Department took the view that the Bamford review's legislation proposals could be delivered through separate mental health and mental capacity legislation but with an overarching set of human rights-based principles.  That was largely in line with the approach already taken in many parts of the United Kingdom and, at that time, was considered to be the only realistic way of delivering legislative reform.  However, the overwhelming view expressed in the responses to the consultation was that the Department should instead take the time to develop the single comprehensive frameworks envisaged by the Bamford review.  Consequently, in September 2009, it was decided that the Department would bring together mental capacity and mental health law in a single Bill in a groundbreaking approach not attempted in any other jurisdiction.
In July 2012, the Department of Justice publicly consulted on the basis of the existing criminal justice provision in the Mental Health (Northern Ireland) Order 1986 and posed a series of questions to determine how the existing legislation could be revised to take account of a capacity-based approach.  Following the consultation exercise, the Department of Justice developed a policy proposal on the basis of the responses received.  The policy proposals were included in the joint consultation that was launched in May 2014.  The criminal justice provisions in the Bill have been drafted in accordance with those proposals, taking into account the responses received in the joint public consultation.
I have a few areas of concern that I hope the Minister will clarify.  The first is to do with the independence of the person who makes the decision to appoint an independent advocate and to ensure that they do not experience undue time and resource pressures. I also want to ask for clarification on the safeguards for those who experience mental health issues and come into contact with the PSNI.  I want to know whether those who decide the need for the care, treatment or social welfare of such individuals, such as custody sergeants, will be trained for that purpose.  Thirdly, I want to know where the money is coming from to implement the Bill.  Finally, I ask the Minister to address the concern that I raised earlier about persons under the age of 16.

Edwin Poots: I welcome the Bill and commend the Ministers for ensuring that it was brought before the House today. I do not intend to repeat much of what has already been said because that will not be of much benefit to us.  However, we all know that the Bill flows from the Bamford review's recommendations.  Much of the implementation of the Bamford review has now been carried out, which is to the good.  This is a critical and essential part of the Bamford review, and, therefore, as a Government, we have accepted Bamford's recommendations.  It is only right and proper that we fulfil those recommendations in completing this work. The Mental Capacity Bill will create greater opportunities for people who have mental capacity issues.  It is critical that we show people respect and courtesy and enable them to have a greater say in their own life.  That is a key component of the Bill.
One issue that caused me concern, which I raised in Committee yesterday, was the implementation costs.  Let us make it clear at the outset that the Bill is about people, not processes. It is not about establishing new all-singing, all-dancing offices; it is about people.  We must ensure that we serve the people well and that they get the appropriate and proper support and care.  We may be able to do that without going overboard in spending public money and still ensure that we deliver the appropriate resource so that people have the correct opportunities.
I want to place on record something that I would like the two Ministers to address.  Whatever we create, we must ensure that it does not become a Civil Service monstrosity that will cost huge amounts of money to implement.
Rather, it must be something that will make a real difference to the lives of people.  That should be the main focus of the Mental Capacity Bill.  It should make a transformational difference to people's lives; it should not be something that will have lots of staff and civil servants carrying out particular duties.  Let us focus on the people who need the service.

Patsy McGlone: Go raibh maith agat, a Phríomh-LeasCheann Comhairle.  I welcome the opportunity to contribute to this very important Second Stage debate on the Mental Capacity Bill.  I do so as a member of the Ad Hoc Committee formed to consider the Bill and as a member of the Justice Committee.
The Bamford review of 2007 highlighted the need for change in this area.  Mental capacity here is governed largely by common law, which involves an incapacity test and the application of a reasonableness principle.  Collectively, that has been referred to as the common law doctrine of necessity.  However, it is now clear that that alone is not enough.  We have seen that Scotland, Wales and England have all moved to legislate for mental capacity.  In that context, I am glad that we have reached the Second Stage of the Bill today, but it is clear that a number of areas require closer scrutiny and clarification before the Bill can become law.  I intend to discuss a few of these today, namely the issue of children under the age of 16, issues around powers of attorney, possible jurisdictional considerations and the practicalities of implementing the legislation.
The Department of Health, Social Services and Public Safety and the Department of Justice have excluded under-16s from the Mental Capacity Bill.  The rationale behind that decision is based around the fact that, due to their developmental stage, children under the age of 16 cannot be subjected to the same tests included in the Bill as adults.  Instead, it has been suggested that the Mental Health Order 1986 be retained, possibly with an amendment of some sort, as an interim measure to cover mental capacity issues for those under the age of 16, until a new legislative solution can be found, possibly through an adjustment of the Children (NI) Order 1995.
The House must ask itself today whether that is an acceptable state of affairs and whether the Bill as presented is the appropriate vehicle for dealing with capacity issues for those under the age of 16.  The Ad Hoc Committee has reflected on the matter.  I look forward to hearing more evidence from stakeholders such as the Children's Law Centre and MindWise pointing to the fact that there are further considerations around the issue of under-16s when we look to the UN Convention on the Rights of the Child, particularly article 2, which concerns non-discrimination; article 3 — the best interests of the child; article 6 — the right to survival and maximum development; article 12 — the right to be heard and have views taken into account; article 23 — the right of a disabled child to a full and decent life; and article 24 — the highest attainable standard of healthcare.
A reasonable argument may be made that the exclusion of those under the age of 16 from the Bill goes against the very ethos of the Bamford review.  Instead of safeguarding children in a legislatively binding fashion, we are relying on a 20-year-old piece of legislation that we may have to refine to bring it up date in any case.  At the same time, obviously a balance must be achieved, as there are delicate considerations when probing the issue of parental consent and, especially, the vulnerability of the child.  In many cases, they are frail and vulnerable, and we are dealing with very sensitive mental health issues and the protection of individuals.
The Committee has touched on and has received briefings on the proposal in the Bill to remove enduring powers of attorney (EPA) and replace them with lasting powers of attorney (LPA).  I have spoken to the Law Society of Northern Ireland around the potential merits and detriments of both.  For example, the cost of making an LPA, based on figures in England and Wales, can be up to three times the amount of making an EPA:  £500 plus VAT, with a further court fee of £110.  However, some believe that the introduction of an LPA can provide further safeguards for individuals from fraud than an EPA can do.
The question for the House and the relevant Departments is whether both versions of powers of attorney need to be mutually exclusive.  Perhaps a system can be incorporated where choice is available to an individual and either EPA or LPA can be used to best suit the needs of the particular case.  I remain to be persuaded one way or the other as to what options may be operable.
One further consideration that I brought to the attention of the Committee and other stakeholders is based around the law as applied or as it may apply.  At the Ad Hoc Committee on Monday — and I see some of the officials here — I raised the issue of how the law on mental capacity may apply and be interpreted in different jurisdictions.  It is my understanding, subject to further clarification, that the Bill proposed here may differ slightly to the Mental Capacity Act in England.  What considerations have the responsible Departments and others given to the regulations around capacity if a person moves between jurisdictions?  The assets may continue to be in different jurisdictions, and how the mental capacity legislation is applied, or otherwise, to access those assets can lead to difficult situations, as quite often others can emerge from the woodwork.  Will it negate any prior arrangements that have been made here if, for example, the person moves to another jurisdiction?  I look forward to some clarification around that because it is clearly an issue that has to be worked through in the best interests of the individual who may be determined as being incapacitated at that time.
Whilst we are dealing primarily with the principles of the Bill today, we must keep one eye on how each of these principles will be delivered in practice.  Compulsory detention, for example, is often essentially a "must do" under very extenuating, difficult and fraught circumstances.  Quite often, due to convenience, a person may be detained under the 1986 Order and subsequently brought to a police station.  I made it clear, and I make it clear again today, that I find absolutely no fault whatsoever with the authorities on that point.  Very often, it is the police who have to deal with the very tricky, delicate and difficult situations of trying to bring in a person who is in a very fraught and fragile mental state and deal with all their sensitivities.
Due to the sensitivities often involved in such cases, I throw out this question:  is it reasonable to suggest that a police station is the appropriate place to take a person who is in such a frail and fragile mental state?  I am thinking particularly of vulnerable young people.  To my mind, it could exacerbate their fragile state of mind if they feel they are being arrested or detained.  All the stress that can build up, and goes with that, in a normal situation where a person is in good health can be compounded where the person is in difficult and fraught circumstances and has very fragile mental health.
As a result, it may be instructive to create a code of good practice for the police when carrying out detention orders to ensure the best care of the person concerned; that the best interests of the person suffering from poor mental health can be protected; and that they can be treated through a proper practice that is universal for the police, who find themselves in these difficult situations.  The police are doing their job and are trying to protect the individual, but, with the best will in the world, they are not the people best placed to make the call as to that person's state of mind.

Alastair Ross: I thank the Member for giving way.  I know we are at Second Stage and are talking about broad principles, but, on a similar theme, an area that we, as a Committee, identified is that where a person is deemed to lack the capacity to make a decision that may then harm them, and is brought to a place of safety, that person has the right to seek legal advice.  However, the assumption is that they will have regained their capacity in order to make that decision.  The Committee may feel that it would be valuable for legal advice to be given as a matter of course as opposed to being something that people have to request.  It very much relies on the individual having the capacity to take a decision that might be in their best interests.

Patsy McGlone: I thank the Chair for that intervention.  As I talk, I am trying to get my own head around these matters.  Is that person competent to take and accept legal advice?  It is an obvious requirement, as is an automatic medical intervention if the person has been determined to be incapacitated.
Often, the difficulties arise when people are not known to police or anyone around and may well not have been reported as being missing from a social services location or, indeed, a mental health hospital.  They just pop up, and the police are placed in the invidious and very difficult position of trying to make the call about how to deal with the situation.  There should be a code of practice for police officers who find themselves in such situations, as was referred to on Monday at the Ad Hoc Committee.  There should be automatic routine practice for police to follow when faced with those situations and when dealing with all the sensitivities that have to faced at the time.
That brings me on to my next point.  At this stage, it is merely a cautionary note, but the principles and associated actions contained in the Bill will no doubt place greater financial burdens on DHSSPS and DOJ, particularly, as I raised the other day, around what is determined to be a place of safety for someone.  If we are saying that police stations may not be the best place to which to take people who are frail or vulnerable on the mental health front, should it be determined that that safe place is in a hospital?  Some of us might view a hospital as being a safe place, but I do not think that A&E is a safe place to which people who may be very distraught should be brought.  They would be being brought somewhere where there are other people suffering from physical disabilities and physical health problems.  That might create difficulties for both parties — the individual who is mentally distraught and those who are in A&E awaiting attention and treatment.  This is something to be worked out with DOJ and the Department of Health, but I think that the safe place should be a convenient and calming environment in a hospital.  Such a place could be made available to individuals for their treatment, to bring them down and to help calm them as much as possible in such circumstances.
At this stage, we do not know how much that might cost, but we can infer from the work carried out by the Committee that there should be, and will be, an additional cost.  How much consideration has been given by both Departments to the funding of the implementation of the Mental Capacity Bill?  That is important to know if we are to get it right, and get it right in the interests of all parties, particularly those who have fallen into difficult health circumstances at that moment in their life.
From the reduction in the Budget for 2011 onwards and in the current financial context, we have seen that, quite often, plausible initiatives fall by the wayside owing to the necessity to save money and a climate of cuts.  A good example of that is Transforming Your Care.  We have to look at the issue in the round, because some of the people at whom Transforming Your Care was directed were people who had been in long-term institutional care, particularly in some of our mental health hospitals.  Those people may find that they have slipped through the net because of the incapability of the system, through Transforming Your Care, to deliver support for them.  They may well be the exact same people who come through the system's revolving door and wind up in difficult circumstances.  I am very well aware of a case in which the police were the first port of call and had to deal with the situation until they eventually got the person to the safe place, which was a local hospital.  That safe place had been got as a result of the forward thinking and planning of the people associated with the hospital.
I hope that the Department of Health and the Department of Justice are examining their budgets against the contents of the Bill so that, when the time comes, the money and manpower will be available to deliver.
In conclusion, the SDLP is broadly supportive of the Bill and thanks those who initiated it and brought it before us for our consideration.  We are broadly supportive of what the legislation seeks to achieve.  However, we need to consider some of the issues that I highlighted —  I am sure that there is a multiplicity of others — before the Bill's provisions can become operational here.

Pam Cameron: I appreciate that we are coming up to 2.00 pm, so I will be brief.
I welcome the opportunity, as a member of the Ad Hoc Joint Committee to Consider the Mental Capacity Bill, to speak on the matter today.  Following on from the recommendations of the Bamford report, it has been recognised that we in Northern Ireland require reform of our mental health law to include provision recognising an individual's mental capacity.  Whilst our current position centres on the individual's best interests, the new legislation will add to the protection given to that person and will no longer rely on the assumption that people with limited or restricted mental capacity cannot take responsibility for major life decisions.
The Bill will bring together mental capacity and law and ensure that an individual's right to make decisions is protected in a way that will ensure that they are primarily kept safe.  The provision within the Bill to allow individuals to participate in and contribute to their care process is to be greatly welcomed.  The provision recognises the fact that mental capacity in those people experiencing mental health issues is often not a one-off episode but may vary on a day-to-day basis.  In providing help and support in making decisions as to how they would like to be cared for during periods of mental distress, people will undoubtedly feel empowered and more in control of their situation.  Without doubt, this approach will be less traumatic for those suffering conditions such as schizophrenia and depression.  Being in control may assist quicker and longer-term recovery.
I appreciate that, at times, it is necessary to make serious and often life-altering decisions on behalf of people when their mental capacity is diminished.  I am pleased that that area has also been given a framework to allow health and social care professionals to make those decisions in order to protect the individual and those making the decisions.  In serious interventions such as major surgery or moving someone to a sheltered dwelling, for example, it is vital that decisions are made in a person-focused manner.  The Bill will provide a system of checks and balances to ensure that the thorough steps have been followed to confirm that the level of mental capacity has been firmly and indisputably established.  Again, the best interests of the individual in question will be at the heart of any decisions, and their right to make decisions for themselves will be safeguarded.
It would be remiss of me not to acknowledge that there have been some concerns raised in relation to the omission of under-16s from the Bill.  In addition, I understand that there is apprehension surrounding the independence and training of those who have responsibility for assessing capacity.  I trust that, as we in the Ad Hoc Committee scrutinise the Bill, we will be able to alleviate those concerns and build into the Bill the insertion of further protection for children into the Mental Health (Northern Ireland) Order 1986.
The Bill contains many legal and medical intricacies, largely due to the fact that we are dealing with the vastly complex issue of mental capacity and how it affects each individual in an often unique way.  It must be said that the projected costs of this Bill and its implementation are huge.  Both Departments have their work cut out for them in managing those vast costs in our rapidly depleting budgets.
The Mental Capacity Bill will provide greater autonomy, independence and ownership for those with mental health difficulties by giving them the ability to manage their own treatment and all aspects of their daily lives.  I support the general principles of the Bill.
The debate stood suspended.

Robin Newton: It is time for questions to the Minister for Regional Development.  I ask the House to take its ease while we change the top table.

Oral Answers to Questions — Regional Development

Robin Newton: We will start with listed questions.

Noxious Weeds

William Irwin: 1. Mr Irwin asked the Minister for Regional Development whether, given the responsibility placed on farmers for the control of noxious weeds on farmland under the Noxious Weeds (Northern Ireland) Order 1977, the current condition of roadside verges will accelerate the spread of noxious weeds to adjoining farmland. (AQO 8392/11-15)

Danny Kennedy: At the outset, I express my gratitude to the Speaker and his office, and to my ministerial colleague Mervyn Storey, the Minister for Social Development, for swapping oral questions today because of personal family circumstances.  Thank you very much indeed.
My Department's policy and procedures on weed control are aimed at ensuring the safety of road users, preventing the deterioration of the road pavement and meeting statutory obligations to control noxious weeds so that they do not spread to adjoining farmland.  As Members will be aware, however, my Department is facing a very significant £60 million resource budget pressure in 2015-16, more than half of which has fallen to Transport NI.  Due to these pressures, my Department is able to provide only a skeleton routine maintenance service at present, at some financial risk to my Department.  As a consequence, weed control is one of the areas affected.
Although my internal workforce has limited capacity to carry out chemical weed control, it will endeavour to undertake that type of treatment to ensure that the Department meets its legislative requirement for noxious weeds.  It is not the service that my Department wishes to provide, but it is a direct consequence of the current very challenging budgetary position.  In June monitoring, I have bid for additional resources to restore routine maintenance activities to normal levels, and I hope that the Member and the House will robustly support my Department's bid.

William Irwin: I thank the Minister for his response.  Does he accept, given that farmers can be fined under cross-compliance for having noxious weeds on the ground, that it should be a priority for him and his Department to ensure that noxious weeds do not seed and spread over farmers' land?

Danny Kennedy: I am grateful to the Member for his supplementary question.  Let me reassure him and, indeed, the entire House that this is not a situation that we want to be in and that every care and consideration will be given to ensuring that there is no impact on farmland or farmers' property.  Local section offices work very closely with farmers in an area.  We are not aware of any widespread difficulty, but, of course, if there are issues that farmers or landowners wish to discuss with my officials at section office level, they will be very happy to do so.  Ultimately, I want to be in a situation in which we can properly fund all these important services.

Cathal Boylan: Go raibh maith agat, a Phríomh-LeasCheann Comhairle.  Has the Minister done an assessment of the additional cost to the Department as a result of not cutting the grass verges earlier in the season?

Danny Kennedy: I am grateful to the Member, but there is a fundamental issue with the current budget allocations.  There is a blockage, and, as is well known, it is a political blockage.  The Member is a member of a party that is central to the blockage in very necessary funds that could assist my Department and other Departments as they confront the very serious financial challenges at this time.  As well as asking me to look at the situation, the Member and his party need to look closely again at a situation that is costing the Executive £2 million a week.

Samuel Gardiner: Will the Minister outline the Department's approach to Japanese knotweed and other invasive species?

Danny Kennedy: I am grateful to the Member for his question.  Members will know that special efforts are required to control giant hogweed and Japanese knotweed by poisoning.  In those instances, Transport NI generally treats invasive weeds such as Japanese knotweed found growing on land in its control using chemical treatment.
That is generally done using specialist contractors, following advice from the NIEA, as required.

June Monitoring Round:  DRD Bid

Ross Hussey: 2. Mr Hussey asked the Minister for Regional Development to outline his Department's bid in the June monitoring round. (AQO 8393/11-15)

Danny Kennedy: The outcome of the 2015-16 Budget leaves my Department facing cuts and pressures of some £60 million on its resource budget, which is around 18% of the 2014-15 baseline.  Whilst I have worked with my officials to try to absorb some of those pressures internally, the extent to which that is possible, without impacting on public safety and core public services, is limited.  Therefore, I have identified eight other resource non-ring-fenced bids totalling £39·8 million and 13 capital bids totalling £141·1 million, which my Department has now submitted to DFP.
The main bids that I have put forward in June monitoring are for essential road and street lighting maintenance activities, including winter service; addressing the shortfall in the funding of NI Water to bring it to the level recommended by the Utility Regulator in its final determination; addressing the continuing pressure on concessionary fares and the delay in implementing the Translink efficiency programme to allow further consultation with the unions in an attempt to minimise the impact on services; and funding to support community and rural transport services.
I have also submitted 13 capital bids, including a bid of £104·4 million to meet the substantial shortfall in the current structural maintenance budget, which stands at over £100 million less than the independently recommended requirement.  I have also included a bid of £15 million to address the shortfall in capital funding to NI Water to bring it up to the level of funding recommended by the Utility Regulator in the PC15 final determination.

Ross Hussey: I thank the Minister for his response.  Will he give more detail on the Transport NI component of the bid?

Danny Kennedy: I am grateful to the Member, and, as I indicated in the initial response and the previous response, the brunt is, unfortunately, being borne by Transport NI.  Its resource budget has a shortfall of £38·5 million compared with the 2014-15 opening budget and a further shortfall compared with the funding required for an optimum service.  As a result, the budget is sufficient to fund only the street lighting and traffic signal energy requirements and associated electrical inspection and testing requirements.  I have, therefore, agreed that Transport NI should undertake a skeleton road maintenance at-risk service until the bids can be made in June monitoring.  Transport NI has submitted resource bids totalling £23·4 million in the June monitoring round.  They include a £14·8 million bid for a skeleton service for street lighting, road maintenance and to fund the winter service for the at-risk period and the remainder of the year.  There is a £6·6 million road maintenance minimum requirement for traffic, patching and routine maintenance, including for the operations and maintenance division and its overheads.  That is in addition to the skeleton service bid.  There is £2 million to cover street lighting, including restoring normal service, for inspection and testing, and for repairs and maintenance to electrical and structural hazards.  That is also in addition to the skeleton service bid.

Jimmy Spratt: Minister, you referred to Northern Ireland Water and capital money for that project.  Is it on your mind to provide capital money for the Duncrue Street Northern Ireland Water facility, which is at full capacity at present and in danger of not allowing any more development in the docks area?

Danny Kennedy: I am grateful to the Member for his supplementary.  He will know that there are significant pressures on capital schemes in NI Water.  As well as the Duncrue one that he mentioned, there is an issue at Sicily Park and other places.
We need to ensure that proper capital and resource funding is made available to NI Water; otherwise we face considerable infrastructure issues that are not in anybody's interest.  The Utility Regulator has set out the bare minimum that she wants and expects us to meet in the water and waste water services that we provide, so it is important that we address that.  I have done as much as I can within the current financial limits open to me to ensure that that happens.  There is still a shortfall.  We are bidding, as I have indicated, for capital and resource to address the situation, and it would be very helpful for the Member and his party to support those bids.

Pat Ramsey: I welcome the Minister's response, particularly on street lighting.  With regard to your bid for community transport, I think that you would want me to acknowledge the contribution that Disability Action and community transport make to the lives of disabled people and their families across Northern Ireland.  Will the Minister ensure that those aspects of Disability Action and disabled people's access are also a bid in this monitoring round?

Danny Kennedy: I am grateful to the Member for his supplementary question.  I understand and entirely agree and want to pay tribute to all the providers of community and rural transport services.  They fulfil an important task, and the Assembly, the Executive and the Department need to ensure that they are properly and fairly funded.  We have sought to do that.  There are challenges, and we have made a bid to the June monitoring.  However, I am getting smoke signals from the Department of Finance and Personnel, and from around the Executive table, as to whether, first of all, we can agree a Budget, let alone whether there will be any moneys available for June monitoring.  Frankly, I am in Old Mother Hubbard land here.  We are already providing services at financial risk, and we can see the skeleton service that is available.  We are in a dire financial situation, and it is time for parties around the Executive table and parties in the Assembly to face political and financial reality, and that includes your own party.

Claire Sugden: Like Mr Ramsey, I also welcome the Minister's intention to bid for more provision for community and rural transport.  In his answer to Mr Ramsey, he alluded to challenges.  Will he outline what those challenges are in respect of that group?

Danny Kennedy: I am grateful to the Member for her question.  Basically, it is one thing to bid in June monitoring for additional funds; it is another thing to receive them.  That is the challenge.  There is no guarantee.  Simply, a bid does not do it in and of itself; it needs to be followed up.  Talk is cheap, but it takes money to buy whiskey.

NI Water:  Environmental Obligations

Kieran McCarthy: 3. Mr McCarthy asked the Minister for Regional Development for his assessment of NI Water meeting its environmental obligations over the next three years. (AQO 8394/11-15)

Danny Kennedy: Northern Ireland Water’s environmental compliance has steadily improved over the last seven years.  This has led to NI Water achieving the best ever waste water compliance in recent years of 98%, which can be attributed to significant investment in sewerage services and improvements to the management and operation of waste water assets.  The number of pollution incidents attributed to NI Water over this period has also declined significantly.
The NI Water business plan for the price control 15 (PC15) period, which runs from 2015 to 2021, sets out the approach for NI Water to continue to improve its compliance and meet environmental obligations over the next six years.  This approach is based on the DRD 'Social and Environmental Guidance for Water and Sewerage Services' that I launched in 2014.
NI Water will strive to continue to meet its environmental obligations over the next three years.  However, due to the reduced funding allocations received by my Department, I am unable to fully fund the determination made by the Utility Regulator in relation to the levels of investment required in water and sewerage infrastructure for this financial year.
Should the situation continue, it may adversely impact on NI Water's ability to build on its success in improving on its performance.  It is clearly an area of concern, and I will continue to bid for additional funding for NI Water through monitoring rounds.

Kieran McCarthy: I thank the Minister for his answer.  Will he accept that the start of infraction proceedings regarding the Ballycastle waste water treatment works demonstrates that vital provision in this region is not being provided by his Department and that it has been an abject failure of the Department not to provide that for Ballycastle?

Danny Kennedy: It is very easy for the Member to say that it is an abject failure on the part of the Department.  Actually, it is not.  I am happy to update him now on the current situation in respect of Ballycastle waste water treatment works.  I got a sense from his question that he was hoping for infraction proceedings.  I am actively working to make sure that we are not subject to infraction proceedings, and that includes the Ballycastle situation.
Ballycastle waste water treatment works is one of 17 sites throughout the UK that is the subject of infraction proceedings by the European Commission for failing to meet objectives under the urban waste water treatment directive.  It is the only one in Northern Ireland.  Meeting our European obligations is a key priority in social and environmental guidance, and the Commission expects those obligations to be met in a timely manner.  As a result, Ballycastle has been identified as a priority for NI Water.  The timescale for completion of the upgrade, subject to satisfactory completion of the procurement and construction processes, would be late 2017.  That information has been communicated to DEFRA and the Commission, and, to date, the proposed way forward has satisfied the Commission and no further action has been taken.

Colum Eastwood: I appreciate what the Minister said about Ballycastle, but given the current financial pressures and impending further financial constraints, is the Minister confident that we are not looking at potential infraction proceedings on any other sites across the North?

Danny Kennedy: I thank the Member for his question.  It will be incumbent on me to protect NI Water and the Department against any such proceedings, but, again, we are down to the issue of finance.  We have to ensure that the infrastructure work that needs to be done on the ground to upgrade water and sewerage facilities is made available so that we can avoid any situation, anywhere in Northern Ireland, in which there is a risk of infraction proceedings.  Those things are taken seriously in Europe, and they are taken seriously by DEFRA and the UK, and let me assure you that they are also taken seriously by me and NI Water.

Coleraine to Londonderry Line:  Phase 2

Alex Easton: 4. Mr Easton asked the Minister for Regional Development to outline how he will redistribute funds from within his departmental budget to facilitate phase 2 of the Coleraine to Londonderry track renewal project. (AQO 8395/11-15)

Danny Kennedy: My commitment to the Coleraine to Londonderry rail line has always been clear, and I have worked hard to ensure that the line has remained open.  The project is a key Programme for Government commitment and is evidence of the Executive’s determination to invest in our rail network.  It also signals our continuing commitment to invest in the north-west and improve connections and frequency of service between Belfast and Londonderry.
In November 2014, I commissioned an independent review of the project following concerns that the original cost estimate for the scheme was significantly underestimated.  The outcome of the review provided me with the assurance to press on with the project.  It confirmed that there might be limited interest in the signalling procurement due to the scale of railway investment being carried forward in Great Britain.  Translink has now awarded the contract to Babcock, which is a company renowned for its engineering excellence.
The overall cost, at £46 million, is higher than originally envisaged but reflects the market that we are competing in.  The profile of expenditure on the Coleraine to Londonderry project is such that there will be no additional budget requirement in this financial year.  As you will be aware, budgets beyond 2015-16 have not yet been agreed.  I will be prioritising this project in my capital planning for the next budget period to provide cover.

Alex Easton: I thank the Minister for his answer.  As he knows, I am fully supportive of what he has done here.
This project is earmarked to happen over two financial years, and he has given a commitment on the funding for the first year.  Can he give a commitment that, if the money is there, the funding will continue into the second financial year?  There is a possibility that it could slip into a third financial year, so can he give a commitment that those two years will be covered?

Danny Kennedy: I thank the Member for his mild encouragement.  I appreciate it.  This is a priority not only for my Department and Translink but is an Executive commitment.  I am not sure where he got the idea that it might slip into a third financial year.  As he will know from previous statements that I have made, the works are due for completion by the end of next year, and I very much anticipate that that target can and will be met.
Obviously, whilst budgets are not set for next year, let alone this year — let us not even go there for this question — it is inconceivable to me that I would receive nothing.  I know that sometimes I am Oliver Twist, in that I am always looking more, but to receive nothing would be jolly unfair.  My expectation is that we will receive sufficient to ensure that Coleraine/Londonderry phase two is completed and paid for.

John Dallat: May I add my congratulations to the Minister?  Will he please tell the House that the £6 million additional is a mere drop in the ocean compared with the money that could not be spent on the A5 and was spent on the A8 and A2?  Will he promise not to lose any sleep over the additional money that he has invested in our railways?

Danny Kennedy: I am grateful to the Member.  I do not think that the notion of me losing sleep would appeal to any Member; therefore, I am comforted by his remarks.  There have been issues in getting phase two under way, but we are now in a better position and are moving forward.  We will have the work undertaken, begun and completed hopefully in time and in budget.  I think it will benefit hugely the increasing numbers of people who want to use the rail service between not just Coleraine and Londonderry but Belfast and Londonderry.  We have seen remarkable and astonishing figures in relation to that —  an increase of 12% over the past year — so we are doing the right thing, and we will continue to work at it until it is satisfactorily and fully finished.

Leslie Cree: Someone once said that all politics is local.  Can the Minister outline bus and rail investment in north Down?

Danny Kennedy: I am very grateful to the Member for his question, lest anybody think it was a plant.
In the past two years, over £240,000 has been directly invested on bus and rail in north Down.  This year, some £1·5 million will be invested, including £1·1 million for Bangor park-and-ride.  Additionally, this year around £5·6 million will be invested in a number of other projects across the wider bus and rail programmes, which will benefit north Down.  I hope the Member draws comfort from that.

York Street Interchange:  Budget Impact

Stewart Dickson: 5. Mr Dickson asked the Minister for Regional Development to outline the impact of the budget crisis on future capital projects, including the York Street interchange. (AQO 8396/11-15)

Danny Kennedy: My Department has a capital allocation of £328·3 million in 2015.  That is some £70 million less than projected expenditure in 2014-15.  However, we are still taking forward a substantial capital programme.  I am pleased to inform the Member that development work on the York Street interchange is progressing well.  This important project will alleviate the existing bottleneck on the strategic road network, which affects the M1/Westlink, M2 and M3.  It will reduce congestion, improve the reliability of journey times and improve access to the regional gateways from the eastern seaboard corridor.
A considerable amount of work is required to take the scheme through the public inquiry process, scheduled to start on 10 November 2015, and the necessary budget has been set aside in this financial year to complete this task.  The scheme has already received EU funding towards design development.  I am hopeful about being successful in attracting further EU funding for construction.  I continue to engage with EU officials to secure further funding for this and other important projects.
If there were to be any cuts to my capital budget as a consequence of the current austerity measures, I would, of course, have to review the capital programme, including the Yorkgate interchange.  However, any decisions would be informed by the extent of budget reductions and a review of the progress on schemes and capital commitments existing at that time.

Stewart Dickson: Minister, thank you for your answer so far, particularly in relation to an actual date for a public inquiry, one at which I will certainly be supporting the project.  One key element of the York Street interchange is the opportunity to provide a dualling of the railway track across that section; but it is a once-in-a-lifetime opportunity, as the consultants have advised that it can be done only at the same time as construction of the roadworks.  Will the Minister confirm that that is true and that he will use his best endeavours to ensure that the work for the rail track is done at the same time as the roadworks?

Danny Kennedy: I am grateful to the Member for the point that he raises.  I understand it entirely, and it appears that, from an engineering point of view, that is the case.  Clearly, it would be sensible that two schemes could run parallel to each other.  I say to him directly, and not in any aggressive way, that I think the difficulty and challenge will be, clearly, that the financial implications of both in terms of capital are substantial.  We will have to look at those issues and other capital projects, which have also been waiting for some considerable time.  Members will be quick to raise particular capital projects that are of interest to them.  I understand the point he has raised, but I see challenges in bringing forward a track scheme of that nature in the immediate period that we are facing.

George Robinson: Can the Minister outline whether budget allocations will affect the Gortcorbies climbing lane project on the Broad Road between Coleraine and Limavady or Limavady and Coleraine?

Danny Kennedy: I am grateful to the Member, and I join with other Members to congratulate him on being a recent recipient in the honours system.  Enjoy the moment.
I am aware of the scheme that the Member speaks of.  Indeed, there are a clutch of other similar schemes for improvements that would give considerable benefit to areas and, indeed, communities.  It was always my intention that we would somehow create a pocketful of money to carry out schemes of that nature.  That might even perhaps be useful to improve the reputation of the Assembly and the Executive for what they are able to deliver, but the financial situations we find ourselves in are very constrained.  Whilst that scheme remains active on the books, we are not able to indicate at this stage how quickly it will further develop.

Robin Newton: That ends the period for listed questions.  We will now move to topical questions.

Finaghy Bridge:  Improvement Plans

Máirtín Ó Muilleoir: T1. Mr Ó Muilleoir asked the Minister for Regional Development, given his pride for his reputation as a bridge-builder, for an update on any plans to improve the eyesore that is the Finaghy bridge, linking west and south Belfast, which has managed to evade all efforts to improve it over recent years. (AQT 2651/11-15)

Danny Kennedy: I am grateful to the Member, and I accept, even as a backhanded compliment, the reference to me as a bridge-builder.  The Member has raised this through correspondence.  It is not so much a topical question as a typical question.  We will provide an update with the detail as quickly as possible.

Máirtín Ó Muilleoir: Go raibh maith agat.  Mo bhuíochas leis an Aire.  Thank you, Minister.  As it is some years since we met about it, perhaps we could return to that discussion.  We welcome the ambitious plan to put a £3 million bridge over the Lagan at Ormeau, but a £25,000 cosmetic exercise is required at Finaghy bridge, which is more redolent of Belfast in the 1970s or the green zone in Iraq than the great city Belfast is today.

Danny Kennedy: I note the Member's comment, and I recall the meeting.  The issue is not so much the structure or soundness of the bridge but its aesthetic value.  I wish that I was in a position to worry about the aesthetics of the services I provide, but I will engage with him, and perhaps we can meet to discuss the issue further.  Tarting up bridges is not so high a priority as maintaining bridges and ensuring that their structure is sound and remains safe.

A2:  Update

David Hilditch: T2. Mr Hilditch asked the Minister for Regional Development for an update on the A2 between Silverstream Banks and Seapark in Carrickfergus and to state when it might be fully functional. (AQT 2652/11-15)

Danny Kennedy: I am grateful to the Member.  I confirm that work is progressing well on the A2 Shore Road scheme at Greenisland.  Work on upgrading three and a half kilometres of single to dual carriageway began in March 2013 and is programmed for completion in September of this year.  Along the online section of scheme between Jordanstown Road and Station Road, the new carriageway in the Carrickfergus-bound direction has been substantially constructed and a contraflow traffic arrangement is currently in operation.  The existing road is now being reconstructed to become the Belfast-bound carriageway.  That work is nearing completion, and, later this month, traffic will revert to it while the final surfacing is completed on the Carrickfergus-bound carriageway.

David Hilditch: I thank the Minister for the update.  It should be acknowledged that the scheme has been managed very well during the two years, with minimal disruption and upset to the vast majority of users.  Tribute should be paid to all those involved.  Has the scheme come in within budget and have some of the minor issues regarding cyclists and bus lanes been sorted out as well?

Danny Kennedy: I am grateful to the Member for his positive comments on the scheme.  Indeed, I want to endorse them and will certainly relay them to my officials, the consultants and the contractors.  There will always be ongoing issues in matters of finer detail.  Those charged with carrying forward the scheme on the ground hope to continue to resolve such issues as easily and practically as possible.  This is a scheme of huge benefit to the east Antrim area and that region, and I look forward to seeing it finalised as quickly as possible.

A5:  Draft Orders

Conor Murphy: T3. Mr Murphy asked the Minister for Regional Development whether he has a confirmed date for the publication of the draft orders for the A5 dual carriageway. (AQT 2653/11-15)

Danny Kennedy: I am grateful to the Member for his question and welcome him back to the House, perhaps unadvisedly as a constituency colleague.
I am currently processing the situation around the A5 and the new statutory approvals that need to be issued, and I hope at some stage to update Executive colleagues on that situation.

Conor Murphy: I thank the Minister for his welcome.  He will be aware that the project has been delayed, causing great dismay in the north-west region.  He has a number of weeks left between now and the summer recess to apprise his Executive colleagues, and then the opportunity for that will pass on until the autumn.  Will he have an opportunity or be in a position to bring it to Executive colleagues this side of the summer recess in order to progress the project as quickly as possible?

Danny Kennedy: I am not in a position to confirm that at this stage.  We are still working through some of the detail.  I could be uncharitable and say that some of the delay issues were caused while he was Minister for Regional Development, but I will not do that.  We will continue to see what progress can be made on the A5 scheme.

Copeland and North Woodburn Reservoirs

Roy Beggs: T4. Mr Beggs asked the Minister for Regional Development for an update on the maintenance work at the Copeland and North Woodburn reservoirs in Carrickfergus, which have been lying empty for most of this year, and to state when the reservoirs will come back into service. (AQT 2654/11-15)

Danny Kennedy: I am grateful to the Member for his question.  NI Water has advised that there are seven reservoirs in the Carrick area that are being refurbished as part of an ongoing routine maintenance programme over the past 18 to 20 months.  Water levels have been lowered in the reservoirs to allow that work to progress.  Work on five reservoirs has been completed, and work on the remaining two — Copeland and Lower South Woodburn — is due to be completed by the end of July, after which they will be refilled.  Again, the rate of refill will depend on the weather.

Roy Beggs: I thank the Minister for his answer.  June is, thankfully, predicted to be a relatively dry and summery month. We do not know what lies beyond that, but can the Minister assure us that there are sufficient stocks of water in the other reservoirs that serve the wider east Antrim area to carry us over the summer?

Danny Kennedy: I am grateful to the Member for his supplementary question.  I can say that the five reservoirs where work has been completed are progressively refilling naturally.  Of course, the rate of refilling depends on weather and rainfall.  I can be challenged about many things, but providing additional rainfall is probably not one of them.  The same principles will therefore apply on the remaining two: Copeland and Lower South Woodburn. We hope that that will deal with the situation.

Grass Cutting:  Review

Paul Girvan: T5. Mr Girvan asked the Minister for Regional Development whether there will be a review of the current grass-cutting policy, which allows for one cut only and is causing some concern. (AQT 2655/11-15)

Danny Kennedy: I am grateful to the Member for his question.  He will have heard me consistently say that this is not the service that I want to provide as Minister, nor do I believe that it is the service that people expect, but I have to say that the skeleton service that I have in place, which is at financial risk, even at this point, is the maximum that I can provide without further relief.  I appeal to him again to use his considerable political influence within his party and therefore on the Executive to ensure that, either through June monitoring or through other sources, the Department can be properly and fully funded for the important front-line services that it undertakes.

Paul Girvan: I thank the Minister for his answer.  I appreciate that it is not additional contractors that are being brought in to undertake that work; it is staff from the Department.  Have any been laid off?  What duties are being carried out by those who were trained to do such a function?

Danny Kennedy: I say to the Member that this is hugely frustrating for my officials and other staff throughout my Department.  I have taken the opportunity to meet front-line service staff in the Armagh area and the Antrim area, close to the Member's constituency, to hear at first hand their frustrations and about the impact on morale.  These are highly dedicated and professional staff who want to carry out and provide the best possible service, and the maximum service, when it comes to grass cutting, gully emptying, street lighting and road defects.  It is hugely frustrating for them to find themselves in this situation.
There have not been any lay-offs at this point.  That will obviously be an absolute last resort, but, in the absence of affording proper materials for them to do their job, it does rather put staff in a very difficult and challenging position.  They have to deal with the frustrations that are being expressed by the general public.  Indeed, I think that all constituency offices and advice centres, including my offices in Markethill and Tandragee, are subject to people raising legitimate concerns and complaints about the lack of road maintenance and associated work.  I hope that that message can trickle down not only to the Assembly but to the Executive to get them to move on, unblock the financial issues and move forward in such a way that we can properly fund front-line services.

Community Transport Networks:  Funding Assessment

Claire Sugden: T6. Ms Sugden asked the Minister for Regional Development to outline how the community transport networks were assessed for the funding that they receive for the services that they provide. (AQT 2656/11-15)

Danny Kennedy: I thank the Member.  She has been assiduous in trying to raise concerns on the issue.
I have to say that, in view of the severe budget outcome — I have outlined this in the recent past — I was forced to reduce funding in that area by some £2 million.  I believe that, through continued efficiencies and use of all the financial resources available to them, providers should be able to minimise the impact on service users.  I have bid for additional funding in the June monitoring round to mitigate further the impact on services.  Those decisions were not easy or soft options in any way.  We have sought to mitigate their impact as much as possible.  We will continue to work with the groups that provide those important services to see whether we can further alleviate the impact.

Claire Sugden: My understanding is that some networks have had the impact mitigated more than others, to the point where those that run a very efficient service have been told to tap into their reserves.  Is it appropriate, or even its business, for the Department to look into those networks' finances and reserves?  After all, a group may have a 10-year-old whiskey, but the Department should not necessarily pressure it to drink it, particularly if there is not another bottle coming any time soon.

Danny Kennedy: I think that the Member's reference is a veiled one to the comment that I made earlier about it taking money to buy whiskey.  It does indeed.  At this stage, even watered whiskey would be a help.  That might be of some benefit.
My Department's officials will continue to work with the groups and transport providers out there to try to manage the situation and offset some of the impacts that we are already aware of to front-line services.  The important thing is that it is ultimately about the customer.  People will debate whether it is proper for reserves to be used in such situations.  Will their use reduce any negative impact that there is on people who use the service?  If the answer to that is yes, and I believe that it is, we have got to stretch ourselves to do that.

Robin Newton: Time is up.

Oral Answers to Questions — Agriculture and Rural Development

Robin Newton: We will start with listed questions.

Farm Animals:  Abandonment

Stephen Moutray: 1. Mr Moutray asked the Minister of Agriculture and Rural Development to outline her Department's role in tracing the owners of abandoned farm animals. (AQO 8419/11-15)

Michelle O'Neill: Go raibh maith agat, a Phríomh-LeasCheann Comhairle.  If farm animals are properly identified, their keepers can normally be identified from data held on the Department's customer and animal information databases.  The Department will share that information according to DARD's privacy notice and in line with data protection legislation.  The Department assists the PSNI to trace the owners of farm animals found abandoned on a public highway.  If abandoned animals are not properly identified, it is often impossible to establish who is responsible for them.

Stephen Moutray: I thank the Minister for her answer, but I am going to press her.  Who is responsible for abandoned horses on private land when animal welfare is not the issue?

Michelle O'Neill: For horses, councils and animal enforcement officers are clearly in the lead in being able to go out to try to identify the owners.  The Department will work, not only for horses but for all animals, with the PSNI or councils, depending on the circumstances.  However, councils have principal responsibility for horses.

Pat Sheehan: Go raibh maith agat, a Phríomh-LeasCheann Comhairle.  Just to expand on that point, will the Minister tell us the legal position on abandoning animals?

Michelle O'Neill: It is illegal for cattle, sheep or pigs to be sold or moved off a farm unless they are properly identified.  If the identity of bovine animals cannot be established within 48 hours, the Department will seize and destroy them without delay under the provisions of the cattle identification regulations.  My Department does not have the power to detain or destroy unidentified pigs or sheep, but it does have the power to prohibit their movement.

Karen McKevitt: Are there links with or a role for the likes of the USPCA to make the protection of abandoned animals and the identification of owners more fluent?

Michelle O'Neill: I am not sure whether there is a role for the USPCA in that instance.  Certainly, there is a role for partners to work together to be able to identify owners and hold people to account, particularly in cases of animal cruelty or abandonment.
As I said, councils are strongly in the lead for horses.  For farmed animals, that is obviously the Department's role.  The PSNI takes control on criminality and other aspects.  There is always a grey area, particularly in areas where there are high numbers of horses.  However, councils are in the lead, in conjunction with the PSNI, to try to identify owners.
When it comes to farmed animals, the Department will use whatever systems it has, within the limits of data protection, to try to identify owners and work with all stakeholders.

Sandra Overend: Will the Minister give an assessment of the scale of the problem of abandoned horses across Northern Ireland and provide an update on the consideration being given in her Department of the redefinition of a horse from a domestic to a farm animal, which would greatly enhance the welfare of abandoned horses?

Michelle O'Neill: I know that the Member has a keen interest in horses and has tabled a Bill on the definition of a horse.  I have had numerous conversations with the equine industry on whether we should change the designation.  I was not convinced of the merits of doing so at that time, but I am always open to considering it further if there ever was a change or new arguments put forward for consideration.  At this time, I am not convinced of the need to change the definition.
Problems with horses are a council issue, and councils take the lead, so it would be better if they gave you an assessment of particular problems.  Some areas have more of a problem than others.  It is not coming to or being tabled with me as a key area of concern, but I have dealt with the issue in my constituency on numerous occasions and understand that it is frustrating for people who constantly encounter abandoned horses on the roads and the car accidents that can result from horses being wild on the roads.
It is important that we are clear about who is responsible for what, which is what we try to do.  I encourage people with concerns about horses to talk to their council animal enforcement officers.

Lamb Labelling

Declan McAleer: 2. Mr McAleer asked the Minister of Agriculture and Rural Development to outline any discussions she has had with other Governments to find a solution to the current problems in relation to lamb labelling. (AQO 8420/11-15)

Michelle O'Neill: I have been concerned about the impact of the new EU country of origin labelling rules on the trade of sheep reared in the North and slaughtered in the South.  I am doing everything in my power to support solutions to the current situation and to head off any potential problems for other products.
I have been in regular contact with Minister Coveney in the South and his Department on labelling issues that have an effect right across the island to seek a resolution to the specific issues in the sheep sector.  My officials had a constructive meeting with Department of Agriculture, Food and Marine officials recently and met EU Commission officials in Brussels on the matter, as well as DEFRA and Food Standards Agency officials here in the North.
I also discussed the impact of country of origin labelling with Commissioner Hogan during his recent visit.  I have written to the Secretary of State for Environment, Food and Rural Affairs and to the EU Commission to outline the unique circumstances of agrifood businesses on this island, and I am making the case for greater flexibility in labelling our local products.  Elizabeth Truss, Secretary of State for Environment, Food and Rural Affairs, replied positively to my letter, and I am pleased that she offered her support in finding a solution to the problem.  I still await a reply from the EU Commissioner.
Ahead of today’s meeting of the Agriculture and Fisheries Council in Luxembourg, at which labelling is likely to be raised during any other business, I have contacted my English, Scottish and Welsh counterparts to reiterate my view that we need flexibilities for farmers in the North.  I remain fully committed to finding a solution to labelling difficulties that works for everyone, and I will continue to press for flexibility for our local products.

Declan McAleer: Go raibh maith agat.  I thank the Minister for her answer.  Will she outline what impact country of origin labelling has had on any other sectors?

Michelle O'Neill: Since it came into play last year, we have had the so-called nomadic cattle and the issues that they caused with the labelling of meat.  The beef trade was quite significantly affected in 2014.  The voluntary term "Irish" could be used to label beef derived from cattle born in the South and imported into the North for direct slaughter or for finishing and slaughter.
I am aware of the recent Commission report on the feasibility of extending country of origin labelling to other products, including milk.  I understand that reports have concluded that the cost of extending mandatory country of origin labelling to additional food products, including milk and milk products, would outweigh the benefits to consumers, but that voluntary labelling should be allowed.  Given the negative effect on beef and lamb, I would not support a further extension of country of origin labelling to other products such as milk.  The potential exists for a very damaging effect on our milk industry, as we currently send about 23% of our milk to the Twenty-six Counties for processing.  I will continue to press for maximum flexibility on labelling for our products because this will have an impact on all other sectors, not just the beef and lamb that have been affected to date.

Robin Swann: Minister, there is a perception among farmers that processors are taking advantage of the issue to lower prices for lambs across the border.  Can she do anything to allay those suspicions?  Has she met processors to discuss and raise those concerns?

Michelle O'Neill: There will always be concerns from farmers, particularly about the volatility of pricing in the market and the controls used by processors and the retailers who buy their products.  That is an ongoing concern of mine, and I have raised it with the Agri-Food Strategy Board.  I want to work on that and produce initiatives over the next number of months, particularly in relation to the whole supply chain and how we can work together.  When the Agri-Food Strategy Board was established, I sent a strong signal and message to it about the need for fairness in the supply chain, and for clear and full communication with the industry, from the farmer right through to when a product is placed on a supermarket shelf.  Unless we have that, we will damage our agrifood sector and, potentially, cause future problems for the industry.  It is a priority and an issue that I continually raise with the Agri-Food Strategy Board, NIMEA and the other processor organisations when I meet them.
Lamb prices have dropped significantly, and there are the other impacts of market forces such as supply and demand or even the euro rate.  All have compounded the problem.  Moving forward, we need to remove any barriers at an EU level, such as the country of origin labelling.  If we have voluntary labelling, processors cannot use that as a stick to beat farmers.

William Irwin: I welcome the fact that the Minister has made efforts to resolve the labelling saga.  Does she feel that we are any nearer to a resolution?

Michelle O'Neill: As far as approaching Europe is concerned, there is provision for a voluntary label.  I have made all the right approaches.  We had positive feedback from DEFRA in England, and I very much welcome that.  I raised it with George Eustice, Minister of State for Farming, Food and the Marine Environment, when I spoke to him last night.  We have ongoing discussions with Minister Coveney in the South because we need agreement from the three parties to take the voluntary label forward.  We are making significant progress, and the sooner we get to that point, the better.
It is only one of a number of issues that affect the industry, but we need to remove any trade barriers or obstacles.  There is traditional trade across the island, whether in lamb, beef or other sectors including, obviously, milk, with nearly a quarter of all the milk that we produce going to the Twenty-six counties for processing.  Anything that places barriers in the way of that all-island trade or restricts our market opportunities has to be taken very seriously, and I assure you that I take it very seriously.

Local Action Groups:  Funding

Paul Girvan: 3. Mr Girvan asked the Minister of Agriculture and Rural Development whether there will be any additional allocation of funds for local action group boards. (AQO 8421/11-15)

Michelle O'Neill: Go raibh maith agat, a LeasCheann Comhairle. Regarding the 2007-2014 rural development programme, there are no additional funds to distribute as, I am pleased to announce, we have achieved a 100% project spend at a programme level for LEADER.  I take the opportunity to thank all those involved in achieving this great result.  It is a first for any LEADER programme in the North, and, considering that it was done against the backdrop of an economic downturn, it is an even bigger achievement.  This investment has so far resulted in 839 full-time equivalent jobs being created in rural areas at a time when they are sorely needed.
Regarding the new LEADER element of the 2014-20 rural development programme, I announced on 22 October 2014 what each of the new local action group (LAG) areas was being allocated.  That has not changed; indeed, I have maintained these allocations despite the difficult financial climate in which we find ourselves.  No additional funds are available for allocation.

Paul Girvan: I thank the Minister for her answer.  Were any calculations made for areas of deprivation in the criteria for the new programme?

Michelle O'Neill: Absolutely, 100%.  The rural development programme is the only show in town for rural communities.  When it came to allocating funding across each LAG area, I was mindful of the need to tackle deprivation, as it is a focus for my Department and me.  We looked at categories such as rural population, levels of deprivation, income deprivation and employment deprivation.  We used a range of comparators to make sure that funds were distributed on a fair and equitable basis.  I am content that that is what I have achieved.

Oliver McMullan: Go raibh maith agat, a LeasCheann Comhairle.  I thank the Minister for her answers so far.  When does she anticipate the call for applications will open?

Michelle O'Neill: Our programme is with Europe at the moment.  We have had very positive feedback, and we are tidying up some of the elements.  We hope by the end of this month or very early in July to have formal approval from the European Commission.  The animation process was launched at the Balmoral show and will continue over the summer.  We are actively working with groups, organisations and businesses that may have ideas and want to consider bidding into the show.  Given the timescale that we expect to achieve for formal sign-off by the Commission, I would want to open official calls for full applications in September this year.

Claire Sugden: Will it be in the Department's power to decide what guidelines it will set to ensure that the appropriate people receive the right money?

Michelle O'Neill: One of the beauties of the LEADER programme is that it is a bottom-up approach.  Local elected representatives along with community representatives decide how funding should be distributed, but it is benchmarked against criteria.  It is all very open and transparent, and all applications are scored by way of a scoring mechanism.  We have been working up all that detail, but it will be consistent right across the board.  All LAGs will use the same criteria, but each LAG will have the opportunity to look at priorities in its area.  One of the advantages that we have is that councils are pulling together their new community plans.  The LAGs will also pull together their rural development plans, and those two things will dovetail, so we are in a good position.  While the criteria and benchmarking will be the same across the board, each area may have a different focus on how it decides to distribute funding through each measure.

Tom Elliott: Was the appointment process for the new boards under the new programme subject to section 75 assessments?

Michelle O'Neill: When the appointment process was taken forward it was very important to me that we got a good spread across the board.  The process was taken forward in conjunction with the rural community networks, which did all the work on the ground, animating, working with groups and encouraging people to apply.  We have a fairer balance because the previous make-up of the LAGs was not sufficient and there were not enough women or young people.  We have addressed that imbalance, but we still have a way to go.  The calls were made, and all the members who came forward were able to vote for the people who were appointed.  We have a better make-up this time round, but there are still improvements to be made.

DARD HQ:  Relocation Update

Leslie Cree: 4. Mr Cree asked the Minister of Agriculture and Rural Development for an update on the proposed relocation of her departmental headquarters. (AQO 8422/11-15)

Michelle O'Neill: The relocation programme involves four different moves, with fisheries division relocating to south Down, Forest Service to Fermanagh, Rivers Agency to Cookstown and the rest of my Department headquarters to Ballykelly.  I am delighted to be able to report that the first of those relocations has taken place: the headquarters of my fisheries division was relocated to the Downshire Civic Centre in Downpatrick last Monday, 8 June.  That represents a major milestone in the relocation programme.
In respect of the move to Ballykelly, another key milestone was reached recently when my officials submitted a planning application for the new building to the Causeway Coast and Glens Borough Council on 30 April.  It is hoped that planning approval will be granted by August — in a few months' time.  Work is well under way at the other two relocation projects, with Forest Service expected to be in Inishkeen House in Fermanagh by the end of September and Rivers Agency in its new accommodation at Loughry by mid-2016.

Leslie Cree: I thank the Minister for her response.  Given that she is pushing ahead without a genuine business case and despite the concerns of several senior officials in her Department and DFP, she is clearly not worried about value for money, but can she give us an update on cost at this point in time?

Michelle O'Neill: The costs are as I have previously outlined: we are talking about £30·8 million in capital and £14·3 million in resource.  As for concerns from officials in either DFP or my Department, I assure you that my Department and all my officials are working to my policy objective, which I have set out.  The programme board has been working consistently over the last number of years.  We are working closely with staff to make sure that we make the transition as easy as possible.  There is an outline business case in place; that is all done.  The Executive have signed off on the process and the move to relocate.  I am happy to rehearse all the arguments around the benefits to rural areas, the economic knock-on effect of the footfall for rural areas, the construction jobs that the build will create and the fairer distribution of public-sector jobs.  That is what this is about.  I am certainly very committed to taking it forward, and I assure you that my officials are tasked with doing that also.

George Robinson: Has the transfer of all the staff to the proposed new site been completed?

Michelle O'Neill: I assume that the Member means the transfer of fisheries division.

George Robinson: Yes.

Michelle O'Neill: Yes. The fisheries move happened last Monday, 8 June.  All the staff have moved out.  Obviously, there may be a few teething problems while everything gets smoothed out, but the office is open and the staff, in the main, are there.  I am sure that it will take a couple of weeks for everything to bed in.

John Dallat: I support the decentralisation of public-service jobs to Ballykelly.  I hope that other Departments do likewise and contribute to the decongesting of our motorways. Does the Minister agree that, irrespective of its previous use, it is one of the most idyllic and beautiful spots in County Derry, overlooking Lough Foyle and Inishowen?  Does the Minister agree that there should be a master plan for the remainder of the site so that best use is made of the 900 acres, rather than flogging it off to the highest bidder?

Michelle O'Neill: I certainly agree that it is a beautiful site.  I look forward to the Department headquarters being completed there.  The site should sell itself; it is a fantastic location.  OFMDFM surveys show that, because we have become the anchor tenant, there is significant interest in the site.  The strategy for taking that forward will come down to that Department.  It is keen to make sure that we maximise the benefit for the Executive and, in turn, public services and the Departments, and that will ensure that we deliver for the people who elect us.  I do not have a crystal ball to foresee what businesses or types of industry will want to move to the site, but, nonetheless, there is significant interest, which is very positive in itself.

Cattle:  Missing/Stolen in Upper Bann

Samuel Gardiner: 5. Mr Gardiner asked the Minister of Agriculture and Rural Development how many cattle have been reported as either missing or stolen in Upper Bann since 2011. (AQO 8423/11-15)

Michelle O'Neill: Under the Cattle Identification Regulations 2012, keepers must report cattle that are lost or stolen in writing to DARD within seven days of the event being noticed.  Information on stolen animals or animals reported missing is kept on the Department's database: the animal and public health information system (APHIS).  APHIS does not differentiate between missing, lost or stolen animals.
Those two categories are recorded collectively on APHIS, and that information is not kept by constituency.  The majority of the Upper Bann constituency is in the Armagh divisional veterinary office (DVO) area.  The number of cattle reported missing or stolen in the Armagh DVO area was 497 in 2010-11; 342 in 2011-12; 389 in 2012-13; 629 in 2013-14; and 666 in 2014-15.  That totals just over 2,500 over the last five years.  The PSNI actively investigates reports of stolen cattle.  I encourage any keeper who suspects that an animal has been stolen to report it to the PSNI as soon as possible so that a full investigation can be carried out.

Samuel Gardiner: I thank the Minister thus far.  Can the Minister give her assessment of the problem of the illegal meat trade in Northern Ireland?  In particular, what is she doing to clamp down on it in border areas, where the problem is especially rife?

Michelle O'Neill: Obviously, I condemn any criminality, particularly in the meat trade, given the implications that are felt by the wider agrifood industry if people are involved in that type of criminality.  It has a knock-on effect, particularly on consumer confidence, even though all the products that go through our system are fully traceable, they are wholesome and we can stand over them when instances such as food fraud occur.  This is something that affects the industry.
However, food fraud is a problem right across Europe.  It is an issue that we seriously need to tackle.  It is an issue that is given a lot of priority at European Commission level and one that I have given priority to.  I will continue to work with the PSNI in particular, as well as with our environmental health officers, our people who work in the abattoirs and our veterinary enforcement team.  I think that everybody has a role to play to make sure that we drive out what is essentially a criminal problem that needs to be dealt with because of the impact it has on the rest of the trade.

Dolores Kelly: Have you had any correspondence with Minister Coveney in the light of the suspected BSE breakout over the border in Louth?

Michelle O'Neill: Yes.  I have spoken to him on the phone, and my officials are regularly engaged on any updates.  There was an identification of a classic BSE case in County Louth last Thursday.  It was identified through the ongoing surveillance systems that are in place, so it showed that those systems and practices are actually working.  The animal was not presented for slaughter, so there was no opportunity for it to enter the food chain.  Confirmatory tests are being undertaken, and we have been advised that it will take up to a week to get the results.
The one message that I want to be clear on and to give an assurance on is that our beef remains a quality product and safe to eat.  The Department of Agriculture, Food and the Marine (DAFM) in the Twenty-six Counties and my Department are liaising daily, and more than once a day on this particular issue.  We will hopefully have confirmed results this week that I hope will point to the fact that it is an isolated case.

Robin Newton: I call Mr Declan Boylan.
[Laughter.]

Cathal Boylan: Go raibh maith agat, a Phríomh-LeasCheann Comhairle.  Could I ask the Minister what —

Robin Newton: My apologies, Mr Boylan.

Cathal Boylan: — action her Department has taken to try to reduce the number of stolen cattle?

Michelle O'Neill: That was a great merging of two individual MLAs.
My Department has been involved in a number of joint initiatives with the PSNI, including the Farmwatch scheme and the Crimestoppers campaign.  The central enforcement team of the veterinary service works closely with the PSNI in conducting joint inspections and investigations.  The DARD veterinary service enforcement branch (VSEB) is involved in ongoing training of PSNI officers on animal identification requirements and the associated documentation that is required when livestock are being moved.
Our VSEB has also attended on-farm workshops organised by the PSNI to discuss those issues and what officers should look out for at roadside checkpoints.  The PSNI reports cases of stolen livestock to DARD, and descriptions of stolen livestock are immediately passed to veterinary staff in meat plants right across the island.  The veterinary service central enforcement team works closely with the special investigations unit in the Department of Agriculture, Food and the Marine, sharing intelligence and conducting joint investigations.  APHIS is available live in all markets and abattoirs.  If an animal has been reported missing or stolen and subsequently appears on these premises, it cannot be processed for sale or slaughter without a DARD investigation.

Agrifood Research:  Strangford

David McNarry: 6. Mr McNarry asked the Minister of Agriculture and Rural Development what specific research projects, planned over the next five years, are designed to benefit the agrifood industry in the Strangford constituency. (AQO 8424/11-15)

Michelle O'Neill: I remain committed to supporting local research and recognise its importance to the agrifood sector's plans for growth.  Although the benefits of research projects funded by DARD are designed to improve sustainability of the agrifood sector across the North, I will give particular focus to those that are benefiting the agrifood industry specifically in your constituency.
DARD funds research through postgraduate studentships, the industry-led research challenge fund (RCF) and the DARD-directed AFBI research programme.  DARD is currently funding 26 studentships directly relating to DARD’s priority evidence and innovation needs and providing high-level training to underpin the science base here.  Currently, two of those studentships are being conducted in aquacultural research in the Strangford area, with a further two PhDs to commence in the autumn.  Three of those studentships are based jointly at Queen's University's marine laboratory, Portaferry and AFBI.
DARD's research challenge fund encourages collaboration between rural enterprises and the research community.  Recently, a three-year project to improve the breeding efficiency of suckler cows was commenced on farms across the North, including beef farms in the Strangford constituency.  It is anticipated that a further tranche of the RCF will be launched later in 2015.
Through the DARD-directed AFBI R&D programme, work is being undertaken to provide estimates of overall carrying capacity for the diverse pot fisheries in Strangford lough and to determine the susceptibility of the seabed to pot fisheries.  AFBI has been successful in obtaining funding under Horizon 2020 for a programme on water quality for aquaculture systems and, under the European fisheries fund, for work on the sustainable management of lobster fisheries.
Finally, the DARD-directed AFBI R&D programme is funding a range of projects underpinning competitiveness, animal health and welfare and sustainable environment across the land-based agrifood sectors in the North.  New research programmes are in the final stages of commissioning and will commence later in the year.

David McNarry: I thank the Minister for her comprehensive response.  I was not expecting that when I asked the question.  In further benefiting Strangford and all farmers, does the Minister welcome the rejection of proposed EU caps on methane emissions and consider that to be a huge relief for the farmers and, not least, the livestock?

Michelle O'Neill: It is an issue of ongoing discussion.  I have a scheduled meeting with my officials, and we will also talk to the Ulster Farmers' Union (UFU) around what it means for the local industry.

Edwin Poots: Does the Minister accept that it is very difficult to have specific research projects to assist the agriculture industry when research is continually cut?  Will she agree to look once again at the research sector and follow what they are doing in Scotland and the Republic of Ireland and identify greater levels of resource to ensure that there is qualitative agriculture research?

Michelle O'Neill: I think it is fair to say that we have a significant body of research ongoing.  That could be seen in the answer I gave to the substantive question.  We have a significant portfolio with AFBI, which was, I think, £40 million last year.  I am currently working with AFBI around research priorities and R&D potential, and looking at R&D and innovation and at what opportunities we have to attract additional funding from the EU in particular.  Since my recent visit to China, the Chinese agriculture and science institute is very keen to work with us around potential research projects.  So, I think we need to look towards what other opportunities there are for us.
To be clear, my officials and I have been working with AFBI around identifying the priority industry needs and the path forward.  Recently, I had sight of its strategy for up to 2020.  We are working our way through that with AFBI.  I understand and think that there is some misinformation out there in relation to AFBI and the challenges, particularly in relation to budget.  I understand that a figure of 26% has been quoted as representing the extent of cuts to AFBI.  That is not the case.  On a like-for-like basis, when you use the same methodology that is employed by my Department and across the public sector, the reduction to AFBI's budget is, in fact, 11·5%.  That compares favourably with what I have tried to find, internally, in DARD, which is just over 15%.  So, when you set that against AFBI's overall cost base, the reduction equates to only 7·5%.
Are there challenges?  Yes.  Do we need to prioritise the work we are doing in research, development and innovations?  Yes.  I will continue to work with AFBI around its priorities and the areas towards which we will be able to look for other funding opportunities for research, development and innovation.

Robin Newton: That ends the period for listed questions.  We move now to topical questions.

Ballykelly:  Transport Infrastructure

Gary Middleton: T1. Mr Middleton asked the Minister of Agriculture and Rural Development whether she has had any discussions with the Minister for Regional Development about the transport infrastructure to and from the Ballykelly site earmarked for her Department’s relocation. (AQT 2671/11-15)

Michelle O'Neill: Yes, it is an issue that a party colleague raised with me, particularly in relation to a possible railway halt.  I am very keen to see that happen.  I think that it would help to open up the entire site, particularly if we have other companies and industries moving onto the site.  I have discussed it with the Regional Development Minister.  He has highlighted challenges.  However, we have an ongoing conversation about whether there is any scope or potential opportunities for us to be able to secure that method of transport, which, I think, would be very beneficial to the site.

Gary Middleton: I thank the Minister for her answer and welcome the fact that there have been discussions in relation to a stop there.  The Minister will be aware that there is quite significant traffic on the roads between Londonderry and the Ballykelly site.  Will she outline how far those discussions have progressed?  Will she continue to press the Regional Development Minister on funding that type of proposal?

Michelle O'Neill: I will continue to have such conversations.  We have had a number of conversations at ministerial level and also at official level.  My project team, which is working very hard to deliver the project in Ballykelly, has obviously factored in, to all the considerations, the transport issues, the access road and all those things.  We are working our way through that.  We are on target to be on site, as I have previously set out.  We do not perceive any problems in relation to that, but, obviously, transport issues, and making sure that the site is accessible to the staff who decide to go there, is a key consideration.

Red Meat Export Markets:  Maximised Potential

Mike Nesbitt: T2. Mr Nesbitt asked the Minister of Agriculture and Rural Development for her assessment of how successful she has been in maximising the potential of red meat export markets. (AQT 2672/11-15)

Michelle O'Neill: Since taking up office, I have very clearly said that this Department is an economic Department, and that is why I worked with the Enterprise Minister to establish the Agri-Food Strategy Board, which has now come up very clearly with a vision; a strategy for the industry, up to 2020, for all sectors, whether beef, lamb, milk, poultry or any other.  In particular, we have worked very hard with our colleagues in the DAFM and DEFRA on opening up market opportunities.  We had some success with beef in South Africa towards the end of last year.  I have recently returned from China, where we had another very successful round of engagements, and we hope to have very positive feedback as that market, hopefully, opens up over the next number of weeks.
There is an ongoing collective effort at Executive level, with the Enterprise Minister and me, for the agrifood industry, going out, taking on and working with whatever Administration it may be to open up new markets.  So, yes, we have had success, particularly in relation to beef.  The strategy clearly sets out that we have so many more opportunities that we need to consider.  We look towards New Zealand, America and Asian countries.  The scope is massive, and it is there for us to embrace, but we need fairness in the supply chain, and we need to assist the industry to grow, if we are to be able to do all that.

Mike Nesbitt: With regard to red meat specifically, does the Minister accept that the export figures confirm that, under her watch, the Republic of Ireland has been allowed to pull well ahead in developing new export markets and, ultimately, that is to the detriment and disadvantage of local producers?

Michelle O'Neill: There is a whole load of different reasons as to why some markets would open up for the Twenty-six Counties but not for us.  Disease status is one reason, and there is quite a range of other issues.  However, we have a very strong trade working group, both at official level and between myself and Minister Coveney, trying to work together to open up market opportunities.  Obviously, I have to work with DEFRA in England on securing access to markets, but I think that I have been very productive.
The Member might like quick wins, but, in opening up new markets, these things do not happen overnight.  That is particularly so in relation to the Chinese market.  I have just returned from my third trip to China.  That is what you have to do to build relationships with these people to achieve market access.  So, we have very clear, ambitious plans, and I think that we will see all that come to fruition over the next number of months as we start to see more and more markets open up for us.

Robin Newton: Mr Campbell is not in his place.

Rural Payments Agency:  Contingency Plans

John McCallister: T4. Mr McCallister asked the Minister of Agriculture and Rural Development to outline the discussions she has had with the Rural Payments Agency and the contingency plans her Department is drawing up in light of a possible budgetary crisis, given that she will be aware of her colleague the Finance Minister’s comments about single farm payments and the possibility of having to use the Rural Payments Agency to make those payments. (AQT 2674/11-15)

Michelle O'Neill: I have not had any discussions with the paying agency, because I am confident that I can make the payments.

John McCallister: I should declare an interest as a recipient of single farm payment.  Surely the Minister must know the very difficult financial situation that farmers face.  Our dairy sector is in real crisis at the moment; there are problems with beef; sheep are in difficulties; grain is in difficulties.  Many farmers will be in financial desperation and in need of the single farm payment.  Surely it is incumbent on her to have a contingency plan to make sure that single farm payments are paid on time to every farmer this year.

Michelle O'Neill: I do not think it is helpful to scaremonger.  I am not suggesting that the Member is scaremongering, but farmers have a difficult enough time without being dragged into the middle of politics and what is, in my opinion, a nonsense statement that you could not make the single farm payment.  Year on year, we have made progress on reaching our targets of getting more people paid in December.  I want to build on that again this year, even though we have come through all the challenges that we have in relation to CAP reform.
It is a nonsense to say that single farm payments will not be paid, and it is not helpful to the farming industry to start scaremongering.  As I said, I am not suggesting that is what you are doing, but whenever we have these conversations in public, the farmers will start to get frightened about what it means for them come December.  The payment comes from Europe.  We make an application to Europe, saying what applications have come forward and the amount that we need to pay.  That money is paid directly to DARD and it then goes out to farmers.  There is no ambiguity:  it is very clear that the payments will be made, regardless of whether I am in office or not.

Fishing Industry Task Force:  Progress

Kieran McCarthy: T5. Mr McCarthy asked the Minister of Agriculture and Rural Development to outline what progress has been made in the six months since the fishing industry task force reported at the end of last year and to state whether she is satisfied with that progress. (AQT 2675/11-15)

Michelle O'Neill: Yes.  Out of the interim report that we received in December, all of the recommendations have been acted on.  That in itself is very positive, and we have also started to look at inshore fisheries.  It has been a very useful piece of work, and we need to have an ongoing discussion with the fishing industry about their needs, what they feel the Department needs to do and how we can exploit the opportunities that are there through the European maritime and fisheries fund (EMFF).  The task force's work has been really helpful, but I want to continue the conversation, even though we have delivered on some of the key asks that the fishing industry has put forward.

Kieran McCarthy: I thank the Minister for her response, but I refer to recommendation 11, where it talks about fishing opportunities and future negotiations.  We are shortly coming to the annual Brussels saga.  Can the Minister give us any encouragement that reports that come back will be more progressive this year than in previous years?

Michelle O'Neill: I think that we have done well in previous years.  We have done well to stave off some of the ridiculous cuts that have been proposed by the Commission in terms of quotas.  We are not at the stage yet where we start to build our case, because we go out to Brussels in December.  Come October, we will take a look to see what the scientists at the International Council for the Exploration of the Sea (ICES) have said.  We will then talk to the industry and identify our priorities.  I decide the priority in conjunction with the industry and, as with every other year, we will go out fighting the corner for the local industry, particularly in relation to quota, which is the key decision at the December Fisheries Council.

Glenariff Forest Park:  Mobile Phone Mast

Oliver McMullan: T6. Mr McMullan asked the Minister of Agriculture and Rural Development what assistance her Department has given to maintain the mobile phone mast at Glenariff forest park. (AQT 2676/11-15)

Michelle O'Neill: I thank the Member for raising that issue with me.  The current leaseholder, Arqiva, formally notified Forest Service on 22 April last year that it intended to terminate the lease for the site at Glenariff from 31 October.  Since receiving that, Forest Service wrote to the current mobile service provider, Everything Everywhere (EE), inviting it to meet to discuss any proposals to continue the service beyond October 2015.  That would involve EE entering into the new legal arrangements directly with Forest Service for the lease of the site.  The meeting took place on 4 June, and EE confirmed its interest to continue mobile service provision beyond the end of October.
Both parties agreed to work towards a new legal arrangement under which EE could lease the site directly from Forest Service.  Ultimately, it will for EE to determine the commercial viability of doing so, but discussions were very positive, and Forest Service is up for working in conjunction with EE and coming to a new service provision agreement.

Oliver McMullan: I thank the Minister for that.  Can Forest Service provide any further assistance for the community in that area in the time ahead?

Michelle O'Neill: Yes. In relation to the mobile phone mast, Forest Service has agreed to forward a draft lease to EE as soon as that is available from the Departmental Solicitor's Office (DSO) so that it can consider it together with the valuation information to enable it to complete its business case consideration.  We will hopefully be able to come to a resolution of the issue very shortly. In the area generally, Forest Service has been working carefully with the local community, and some very successful projects have been taken forward under the tourism initiative to which Forest Service contributed.  We have had the repairs done at Glenariff and a new camping site.  There is an ongoing body of work being done by Forest Service and the local community.

Rural Crime

Alastair Ross: T7. Mr Ross asked the Minister of Agriculture and Rural Development what work she is engaged in to tackle rural crime and whether she is working with the rural community, given that she may be aware that the Justice Committee recently held a business crime event at which the Federation of Small Businesses in particular mentioned rural crime. (AQT 2677/11-15)

Michelle O'Neill: We work in partnership with the PSNI, which is in the lead when it comes to tackling crime.  The Department gets involved in issues that relate to the welfare or identification of animals.  For me, tackling rural crime has to be taken forward through a partnership approach.  I regularly engage with the Minister of Justice and with the Chief Constable on the PSNI's priorities for tackling crime and issues of concern in different areas.  That is an ongoing, joined-up approach, and we have seen very positive improvements in the working relationship across all the agencies involved in tackling crime.

Alastair Ross: The Minister will be aware that the perception in the rural community is that the situation is getting worse.  I appreciate the Minister saying that the relationship is good, and that is something that can be worked on. Does she believe that the existing structures for communication between rural communities and their local police force and, indeed, at a higher level are adequate to address the issue?  Could any improvements be made to increase confidence in rural communities that the issue is being taken seriously by the police?

Michelle O'Neill: We are straying into the realm of policing issues, which are not directly my responsibility.  There is obviously room for improvement.  All districts will have community police on the ground.  In some areas, there will be strong relationships but, in others, maybe not so much.  Those are issues to be taken up with the local policing partnerships.  At ministerial level, the Chief Constable and I regularly communicate on key issues of interest at the time and key issues for rural communities.  As I said, we have enhanced and improved communication across all the agencies involved, but the PSNI is ultimately in the lead on rural crime.

Fish Stocks:  Lough Neagh

Dolores Kelly: T8. Mrs D Kelly asked the Minister of Agriculture and Rural Development to advise how her Department manages the fish stocks in Lough Neagh, particularly pollan and Lough Neagh eel, whether an estimation exists of the numbers and whether there has been a decline in recent years. (AQT 2678/11-15)

Dolores Kelly: I am pleased to say that I was able to ensure that reducing rural crime was a target in the policing plan.

Michelle O'Neill: That issue is dealt with by DCAL; it is not within DARD's remit.  However, with the change in Departments next year, that remit will come to DARD. That will be beneficial for the entire industry, in that fishing will be dealt with in one Department and environmental issues will be dealt with in one Department.  The lough will be able to avail itself of the benefits.

Robin Newton: Time is up.  Members will take their ease while we change the Table.
(Mr Deputy Speaker [Mr Dallat] in the Chair)

Executive Committee Business

Mental Capacity Bill:  Second Stage

Debate resumed on motion:
That the Second Stage of the Mental Capacity Bill [NIA 49/11-16] be agreed. — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

John McCallister: I have only a few brief comments about the Bill.  I welcome the Bill, despite the time that it has taken to develop it. It has been a long time in getting to this stage: during the 2007-2011 Assembly mandate, I served on the Health Committee, and we took evidence back then.  At one stage, it looked like there would be two Bills, and we have narrowed that down to one Bill.  However, it is a huge piece of legislation with a lot of ramifications.  Compared with other areas of the UK, this is slightly different with regard to mental capacity legislation, and we are in a stronger position than the rest of the UK with the creation of a single comprehensive framework for reforming mental health legislation and capacity legislation.
I recognise Members' comments today about the need to reform the legislation, but we should not lose sight of the fact that this is the power of devolution and the benefits of the Assembly.  If the Assembly were to collapse or were not here, we would not be doing this.  This much-needed legislation would go, and that is worth looking at.  When we see the development of legislation like this, we see the very best of the Assembly in scrutinising and progressing it through its stages.  We look at the impasses and the politics that make this place work.  We need to be sure that we can deliver this legislation, because huge numbers of people are affected and are depending on it.  I welcome the fact that the Department of Health, Social Services and Public Safety is working so closely with the Department of Justice.
One core aspect of the Bill is to promote the ability and to support people with mental health and mental capacity issues to make decisions for themselves, and that is extremely welcome.  Another core aspect explores the role of the state when it considers that individuals do not have the mental capacity to advocate for themselves and the role of the state in acting in the best interests of those people.
While I do not want to go into the detail of the Bill today, the core focus of our scrutiny should be to ensure that the right legal framework is in place to ensure that decision-makers acting on behalf of the state and, subsequently, in the best interests of individuals have the ability and training and are accountable for making decisions on behalf of other people and in their interests.
The Bill talks of safeguarding.  I suggest that Members be cognisant of recent incidents, primarily in health services, in which vulnerable people who perhaps do not have mental capacity issues have been abused by those who work for and on behalf of the state.  To some, this may seem slightly outside the scope and tone of the debate, but, in my mind, it is crucial to it.  We are exploring the role that the state will have in helping people to come to decisions that are in their best interests and, in some cases, making decisions for them.
We should be very mindful that the state is taking on a huge responsibility — at times, maybe rightly so.  However, we have to be aware that, in many instances in the past, in this jurisdiction, in other parts of the UK and in the Republic of Ireland, the old adage, "The road to hell is paved with good intentions", applied.  The state took on more responsibilities but did not have the ability or accountability to manage them.  So, in my mind, the training, ethics and scrutiny to which the state subjects itself are crucial to delivering what is genuinely in the best interests of vulnerable people.
I encourage members of the Ad Hoc Joint Committee to ensure that the clauses relating to the ability to have a case referred to a tribunal result in a process.  That is not overly onerous or debilitating for individuals or their advocates, but the principles of ability, expertise and accountability must run through the Bill, from the police to court judges.
I remind the House that the role of overseeing and reviewing the implementation of the Bill at a later stage may well fall to us or to a successor Assembly, so we all have to be very mindful of that.  It would probably have been preferable for this huge legislation to be introduced earlier.  However, I think that the single-Bill approach, with an Ad Hoc Joint Committee, which has members of the Health and Justice Committees, looking at this very closely and being mindful of the huge responsibility that the state has the potential to take on, is the right way to progress.
Mr McGlone aired the under-16s issue.  The Ad Hoc Joint Committee, the Justice Committee, the Health Committee and the Departments of Health and Justice might want to look at that to see whether there are any other solutions or whether we will be dependent on legislation that is now almost 30 years old.  Is that as relevant today as it was in 1986, for example, or are there alternatives and perhaps better options more relevant to the age that we live in today?
I am more than happy to support the very broad principles of the Bill, but we must be ever mindful of the huge responsibilities that the state will take on should it progress and become law.  Where are the checks and balances on that power when it comes to monitoring the police and making decisions about capacity?  It is incumbent on us all to make sure that we get that balance right.

Simon Hamilton: It is pretty clear from today's debate —  the array of Members who spoke and the very considered contributions made from all corners of the House — that the Bill is, as I outlined in my earlier contribution, far-reaching and has the potential to touch upon the lives of a great number of people in Northern Ireland.
If I have sensed the tone of Members' contributions accurately, they would agree that it is critical that we get this legislation right.  A lot of points were raised expressing concerns about clarity, not least by Mr McCallister, who made the last contribution in the debate.  There is a need for further clarity and the hollowing out of some issues; that is why we have the process that we have in this House.  I hope that the Bill passes its Second Stage, and I look forward to the Ad Hoc Committee getting its teeth into it and having those debates.
I welcome Members' contributions today and thank them for them.  I also thank those on the Ad Hoc Committee in advance for the taxing and time-consuming work that they will do on the Bill when it enters its Committee Stage.  I will attempt to turn to as many of the issues that were raised in the debate as possible.  To be fair, many of them were raised by a selection of Members, so forgive me if I ascribe points to a particular Member because many were raised by virtually everybody who spoke.  I appreciate that, in my response, I may not be able to pick up on some of the issues that were raised, but I will endeavour to write to any Member who raised points that I do not get an opportunity to respond to.
Mr Ross spoke in his capacity as Chair of the Ad Hoc Committee, and he and many other Members welcomed the fact that this was an innovative, ground-breaking piece of legislation.  Mr McCallister was right in his opening comments to remark that this would not have been done in any other way and that the fact that no other legislature has attempted this means that it is bold.  He is right that if we had still been under direct rule, we would have had some of the changes that would have gone through in the Mental Capacity Act, on which there is agreement that it does not go far enough and certainly does not do what we are attempting to do in the Bill.
Mr Ross is right to talk about how good it is to be innovative, and I want to see, across our health and social care system, us being increasingly embracing of innovation.  If we are to meet the demands on our health and social care sector, we need to be continually innovative and build on the successes that we have had in the past, but being innovative, as Mr Ross pointed out, brings with it challenges.  It is, as he described, "a complex test", because it is a fundamental change.  He used that great line from 'Yes, Prime Minister' about it being "very courageous".  I always preferred the episodes where Hacker got the better of Sir Humphrey, even though they were few and far between.
I understand the points that Mr Ross was making on behalf of the Committee.  It is bold and, perhaps, courageous to do what we are doing.  To be the first anywhere in the world to do something sometimes poses the question:  "If nobody else has done it, why are we doing it?", but somebody has to try things first.  That in itself is not a justification, but what is a justification for doing what we are doing is that the status quo — to do nothing and have no mental capacity legislation for adults in Northern Ireland — was not an option.  We had to do something.
Our legislation needs to be changed to address some long-standing court judgements that have not looked favourably on the system that we have in Northern Ireland.  It is right that we proceed along these lines; in doing so we are being innovative, which is something to welcome.
He mentioned the "tardiness" in bringing such a huge piece of legislation forward.  He pointed out that there are 295 clauses and that it is the biggest Bill ever to come before the House.  To do so late on in a term — a point that I will revisit later in response to other Members' comments — is perhaps not best practice and I think that is a fair point.  All I can say is that I signed off on an Executive paper on this to go to colleagues on 12 May, which happened to be the second day I was in office, so I was certainly quick to get things progressing.
It has perhaps taken longer than we would have hoped.  A lot of effort has been made by a series of officials and others down through the years, and there has been engagement with people outside the system too.  If I can offer an explanation, it is a novel approach, there have been extensive consultations down through the years and there have been extensive engagements with stakeholders that, I believe, have served to improve the legislation that is before us.  That probably shows that it was worthwhile perhaps to take a little more time.
I take the point, having been a Chair of a Committee towards the end of the last mandate and having seen a raft of legislation coming forward.  I am now looking at the Chair of my scrutiny Committee opposite, and she will know that there is a significant amount of legislation coming through from our Department.  It seems to be an unfortunate habit that all Departments get into in this place, but there is still time to scrutinise it, even though it is extensive legislation.  Of course, as the Member would expect, I have every faith in the Chair to steward the Committee in the work that it will do over the coming months.
Mr Ross raised, as many Members did, an issue around the cost of implementation of the legislation if and when it passes.  From dealing with the many budget challenges that I face as Minister of Health, I understand the concerns that others have, and I welcome their concern about anything that would have significant cost pressures on what is already an under-pressure budget.  Mr Ross quoted figures of a year 1 implementation cost of around £70 million to £118 million and, thereafter, ongoing costs ranging from £64 million to £92 million.  It is probably worth putting it on the record that those are estimates of costs as opposed to definitive costs, and, as you would expect, there is a pushing back, if I can use that phrase, on the trusts, which have provided many of those figures, to ensure that those figures and estimates of costs are as robust as possible.  I expect that, in pushing back, that sees a significant reduction in the cost of implementing the legislation.
It is perhaps a most opportune time for the Minister of Finance to walk into the Chamber, when we are talking about costs.  To paint a slightly negative scenario, if, for example, I am not successful in the comprehensive spending review in getting the requisite funds to implement the legislation, there is always the option under the legislation to phase or delay commencement of various stages.  There may be some elements that we want to bring forward early to ensure that we adhere to certain international standards, but there may be others that are obviously desirable and things that we want to do that we may, because of cost implications, have to delay or phase the introduction of.  I would be open to doing that in circumstances where we were not successful in securing appropriate resources through a comprehensive spending review and subsequent Budgets.
Mr Ross and other Members, including Mr McGlone, raised the issue of lasting power of attorney and the change away from the current situation.  He made the point that this may be costly and that, because it is costly, it may put people off getting a lasting power of attorney.  I can understand the point that is made.  I think that it is accepted and acknowledged that there is a difference between what is proposed through lasting powers of attorney versus enduring powers of attorney and that lasting powers of attorney cover care, treatment and personal welfare as well as property and affairs.  Mr Ross and others floated the idea of perhaps having two systems.  I am keen to look at what implications there might be and what confusion having two systems might lead to.  I am certainly happy to look at the issue in the context of the Committee's scrutiny of it, what evidence it receives and whether there are perhaps other options that we can consider.
Mr Ross and virtually everybody who spoke raised the issue of a perceived gap in protections for those who are under 16.  If I may, I will take some time on this point, because it was the issue that was most talked about and that most exercised Members in their contributions.  It is worth beginning by pointing out that there is and will remain legislation in place in the Mental Health Order and the Children Order, but there is no provision for adults who lack mental capacity.  There is already a difference between the systems for adults and children.
The Children Order has special protections and reflects the important role that parents play in decision-making relating to their children, which you would expect to be the case.  The Mental Health Order has further protections for children who need compulsory assessment or treatment.  The Bill would amend and enhance those protections.  For example, the new best-interests principle will be a primary consideration, and the views of the child will be taken into account.  There will also be an amendment to have an independent advocate to support children who are admitted to hospital voluntarily or under the Mental Health Order, as well as a new duty to provide age-appropriate accommodation.  Whilst I understand the points that Members made, it is not a matter of us doing nothing for children; there will be amendments proposed and changes made that will enhance the protection of and care for children.
Rosaleen McCorley asked why we were not doing a review of the Children's Order and having a separate project on children.  I understand the point and why she was making it.  The response I would offer is as much practical as anything else: there are simply no available resources and arguably no time to undertake such a wide-ranging project at this moment.  Unlike what we have done with the Mental Capacity Bill, I suppose, I also understand that there is no consensus across stakeholders or government about what changes are actually required, so I do not believe that it would be simple or straightforward work to undertake anyway.  Even if we had the resources to do it, it is possible that there would be no definitive or clear outcome on where we would head from that point. We need to be mindful of those points before we undertake such serious work. Even though the Bill does not propose to do what Members think it should, it is not the case that safeguarding children is any less a priority than it was before. The fact that we are seeking to amend the Children Order and the Mental Health Order by putting in other duties shows that the issue is taken very seriously by the Department.
I do not like to be perceived as warning Committees about what work they should do, but there is perhaps a need for caution.  I heard some Members talk about wanting to address the issue by tabling amendments at Committee Stage.  It is, of course, the right of the Committee to do so if it can agree to it.  As I said, I look forward to that scrutiny, which I anticipate will enhance the Bill, but, in the context of the lack of a considered and shared view, I caution the Committee about seeking to be too radical.  There is always a risk.  There is a reason why there is that old saying about legislating in haste and repenting at leisure.  I caution against going too hard, too far and too fast by making significant changes to issues that affect children and perhaps not getting it right at this time.  It may be better to take a bit more time to get it right in the longer term, even though that might frustrate some people.
Mr McKinney raised the need to support older people in making decisions.  A key principle underscoring the Bill is giving people all the practical help and support we can to enable them to make their own decisions.  That includes providing information about the decision and explaining the options in good time and in the right environment.  Whilst I understand the points that Mr McKinney raised, it is worth pointing out that our Bill goes much further in that area than the English Mental Capacity Act.
Mr McKinney also raised funding of the Bamford action plan.  Of the 76 actions in the action plan, which covers the period from 2012 to 2015, all but a dozen are well on track, and the remaining actions will be completed, albeit with some delay.  Funding is always an issue in health, as I am starting to learn and discover very quickly, but, in my view, there has been strong implementation of the plan.  An evaluation of the plan and its outcomes is under way, and it has been extended for a year to allow for that.
Finally on Mr McKinney's points, he asked about training — I think Mr Easton also asked about training issues — in the health and social care sector, the cost of training and cost savings.  Approximately £27 million in year 1 — that is at the higher end of the estimated costs for the health sector — is assigned to training people across the health and social care system.  Early work is under way in developing that. Current thinking is that training will be delivered on what would be a stepped or layered basis, so, for example, everyone in the health and social care system, whether they be porters or receptionists, would receive general awareness training.  Going up a level, staff in acute wards would receive intermediate training, and social workers, consultant psychiatrists or psychologists would receive very detailed training.  There is obviously, therefore, a need to deliver training of one degree or another to 65,000-plus people across HSC and to do so with no disruption in service.  That will clearly present some challenges.
Mrs Dobson, speaking on behalf of the Ulster Unionist Party, excoriated me for prevarication and asked why the Bill had taken so long to get to where it is.  I will just caution her that arguing about prevarication and delay in bringing the Bill forward will elicit the question in response of who the Health Minister was between 2007 and 2010, when, of course, key decisions were taken that resulted in delay.  Many would argue, me included, that it was positive delay, but decisions were taken around the 2009-2010 period to fuse mental capacity and mental health legislation into a single Bill.  That obviously added to complexity in the Bill and to time.
I am glad that Mrs Dobson has arrived in the Chamber to hear further points.  She also made an interesting point, following on somewhat from Mr Ross's point, about the introduction of far-reaching, significant legislation late on in an Assembly mandate.  Those are comments that, particularly for her, are worth reflecting on. Mrs Dobson also raised an issue around the code of practice.  There will be a general code that will cover main principles.  An early draft of that is under way, as I said.  We are also looking at developing some settings-based codes as well as a general code, for example for acute staff and domiciliary care staff, and will pick out the more salient points for those workers from the general code of practice.
On the issue of advance decisions, which the Member raised, the Bill makes it clear that decision-makers cannot give a person treatment if it conflicts with a valid advance decision made by that person.  If they do so, they will not have legal cover under the Bill.  I can assure the Member and, indeed, the whole House that the code of practice will elaborate on what is a valid advance decision.
I have already addressed some of the points that Mr Easton raised, but he also asked a very pertinent question around how we could ensure that independent advocates were actually independent.  The requirement for the advocate to be independent from the decision-maker is in the Bill.  It is also reflected in the departmental guidance issued to trusts in 2012 on the commissioning of advocacy services in health and social care.  Further guidance will be provided in the code of practice and in regulations.
Mr McGlone raised some concerns he has with differences in the Mental Capacity Act in GB and what would happen with people moving between jurisdictions.  On the broader point about differences between the legislation that is in place and active in England and our proposed legislation, I understand that the Committee has requested a comparison of the two, and that will obviously be provided in due course.  On the particular issue of lasting powers of attorney and people moving to other jurisdictions, I think it is a pertinent and relevant issue that Mr McGlone has raised.  I am happy to work with the Committee during its scrutiny to tease out how that might be addressed.
I will move to conclude now.  I appreciate, as I said, that there may be some points that Members have raised that I have not touched on directly.  I will endeavour to correspond with anybody who has raised points that I have not addressed, but I think that most of the broad themes that characterised most Members' contributions have been touched on.  The debate has been a valuable opportunity for me to hear at first hand the views of Members on what is novel and incredibly important legislation.
The Bill sums up what I want to see happening right across the health and social care sector, which is reform, transformation and innovation.  It represents a once-in-a-generation opportunity to reform this important area of law.  It is about transforming how decisions are made when people are unable to make them for themselves in respect of their care, treatment or money.  It has the potential to put us ahead of many other jurisdictions across the world by adopting an innovative approach.
It is clear that the interest that the Bill has generated outside the Chamber has been reflected in the debate today.  I would like to wish the Committee well as it begins its crucial scrutiny of the Bill.
Question put and agreed to.

Resolved:
That the Second Stage of the Mental Capacity Bill [NIA 49/11-16] be agreed.

Budget (No. 2) Bill 2015: First Stage

Arlene Foster: I beg to introduce the Budget (No. 2) Bill 2015 [53/11-16], which is a Bill to authorise the issue out of the Consolidated Fund of certain sums for the service of the year ending 31 March 2016; to appropriate those sums for specified purposes; to authorise the Department of Finance and Personnel to borrow on the credit of the appropriated sums; to authorise the use for the public service of certain resources (including accruing resources) for the year ending 31 March 2016; and to repeal certain spent provisions.
Bill passed First Stage and ordered to be printed.

Legal Complaints and Regulation Bill:  Second Stage

Arlene Foster: I beg to move
That the Second Stage of the Legal Complaints and Regulation Bill [NIA 50/11-16] be agreed.
I welcome the opportunity today to speak about my proposals for changes to the current arrangements relating to certain aspects of the regulation of lawyers, in particular how complaints against lawyers are handled and overseen.  The Legal Complaints and Regulation Bill will set out a new statutory framework for complaints handling and will introduce strengthened oversight of that framework.  It is the culmination of work that commenced with an independent review of regulation of the legal profession and brings, in my view, a proportionate change in this area, which will benefit consumers and be helpful to users of legal services.
Before I look at the provisions of the Bill, I want to say something about how we have arrived at this stage today.  The Bill has at its genesis, as I have noted, a report that was published back in late 2006 by the legal services review group, which was chaired by Professor Sir George Bain.  The Bain report, as it is sometimes referred to, was commissioned by the then direct rule Government as a follow-up to work that was being carried out in England and Wales and which ultimately led to the Legal Services Act 2007 in that jurisdiction.
Professor Bain and his team spent almost a year examining the various facets of regulation of the legal profession.  The report produced a total of 42 recommendations relating to complaints, regulation and competition.  The Bill implements much of that report and its recommendations, with a particular focus on what Bain described as its principal proposals, that being reform of the complaints handling system.
The Bain report found that the existing complaints handling system for lawyers, whilst operating reasonably effectively, would benefit from measured reform; what the group described as a "copper-bottoming" of procedures.  Its key recommendation in regard to complaints was that the emphasis should be switched from professionals — solicitors and barristers — judging their own members to a system of lay-majority participation with lay chairpersons being able to deal with complaints.
In this regard, Bain considered how best to achieve this end result.  The review team had at its disposal the option to take the complaints handling function entirely away from the relevant professional bodies and place it into the hands of a fully independent complaints handling body.  This had happened elsewhere, most notably in England and Wales as a result of the Legal Services Act 2007 and also in Scotland, which now has the Scottish Legal Complaints Commission.
Bain considered this option carefully in the context of a number of factors that the team met during its work on the review.  First, it noted that Northern Ireland is a separate jurisdiction with a legal profession that is set up in a different way to others.  It found that the professional bodies, namely the Law Society and the Bar Council, had a relatively good record in relation to regulation, and there was not the same regulatory maze that had been identified in other jurisdictions.
Secondly, it observed that the number of complaints against lawyers here was relatively small; figures back then showed 200 to 300 complaints per year on average against solicitors, and far fewer against barristers.  It concluded, and I direct Members to the review group's report, that a fully independent complaints handling body would not be a proportionate recommendation in need or cost.
Alternatively, it proposed that the functions should remain with the professional bodies but subject to significant changes.  As I mentioned, complaints are currently heard by committees chaired by a lawyer and with a significant majority of lawyers as members.  Bain recommended lay chairs and lay majorities, and that complaints committees be functionally separate from the professional body.  In addition, it recommended that the powers available to that lay-led committee should be enhanced, including the power, which currently does not exist, to award compensation.
Underpinning that main set of recommendations was an enhanced level of oversight.  Current arrangements are restricted to the office of the Lay Observer for Northern Ireland.  The Lay Observer has a fairly narrow remit and can examine only how complaints against solicitors are handled by the Law Society.  The Lay Observer has no remit in relation to the Bar.  Bain recommended that the oversight be beefed up, and suggested the creation of the post of Legal Services Oversight Commissioner.  It proposed that the majority of their influence relate to the complaints handling system, with, amongst other things, the power to set targets and plans for the professional bodies, to monitor action against those plans, and to have robust powers where the professional bodies were not meeting those targets and plans.
Bain also recommended that the Legal Services Oversight Commissioner should have a consultative role in relation to other aspects of regulation — rule-making by the professional bodies in matters such as education, training and competition — and be able to examine other such areas if asked to do so by Government.
Those recommendations represent the cornerstone of the Bill.  I place on record my appreciation of Professor Bain and his team for all that work.  It has taken some time for the proposals to reach the Floor of the Assembly, for various reasons.  In acknowledging the significant passage of time, last year, my Department consulted once again on the proposals in the draft Bill in order to establish that what they were proposing was as relevant today.  That exercise cemented the Bain work, with a clear message coming from the consultation that the Bain recommendations were still valid eight years on.
The Bill has 55 clauses, five schedules and three Parts.  The House will be relieved that I do not intend to provide a narrative on each and every clause and schedule, but there are a number of points that I would like to draw the attention of Members to.
Part 1, which encompasses clauses 1 to 10, deals with the proposed Legal Services Oversight Commissioner.  Clause 1 states that the office holder will be appointed by my Department after consultation with the Lord Chief Justice, and is underpinned by the contents of schedule 1.  In broad terms, the Commissioner will be a layperson and subject to terms and conditions consistent with other appointments of this nature.
Clause 2 sets out the office holder's key powers, which, as I mentioned, are based on proposals by the Bain group.  Those powers will provide a proportionate and effective level of oversight of how complaints against lawyers are handled.  While the Legal Services Oversight Commissioner will be able to apply a monetary penalty on a professional body that fails to fulfil its obligations, I expect that professional bodies will recognise their additional responsibilities in relation to complaints and work closely with the Legal Services Oversight Commissioner, and that that penalty will be a tool of last resort.
Clauses 3 and 4 relate to the expanded role of the Commissioner in relation to other aspects of legal regulation.  Complaints handling forms but one part of that process, and there are many other things that a professional body does in making rules and regulations to govern its members.  Those include education, entry to the profession, professional development and training.  It is important that there should be a degree of transparency for those functions as well.  These clauses seek to provide that.
Clauses 5 and 6 deal with how the office of the Legal Services Oversight Commissioner will be financed.  I am of the view that the public purse should not be used to pay for the new arrangements.  In keeping with other jurisdictions, I recommend that the office be funded by a levy on the professional bodies.  How that will be determined will, in part, be a matter for the professional bodies, working with the Department and the commissioner.  Subsequent regulations will add more detail.
I also ask Members to note that clause 9 will abolish the office of the Lay Observer.  The commissioner will have much deeper powers than that office, and I very much want to record my gratitude to the incumbent of that office, Mr Alasdair MacLaughlin, and his predecessors for the work that they have engaged in.  They have all been engaged in worthy work, at a minimal cost, and with access to very modest resources, over a lengthy period.
I turn now to Parts 2 and 3 of the Bill.  They are broadly the same, setting out new complaints procedures for barristers at Part 2 and solicitors at Part 3.  Why the barristers come first, I am not quite sure, but anyway.  It was obviously drafted before I came into office.  Parts 2 and 3 are supported by the provisions in schedules 2 and 3.
There are a number of key points to note.  For barristers, the Bar Council currently has the main role when it comes to complaints.  It will still have a role to play.  Clause 11 states that it must make provision for all barristers to participate in procedures for resolving complaints, but the maintenance of the formal Bar complaints committee will vest in another arm of the professional body, the Benchers of the Inn of Court.
Regulation of barristers is quite a complex arrangement, and I do not propose to go into a lot of detail about that.  All barristers are members of the Inn of Court of Northern Ireland, and their representative body is the Bar Council.  Bain considered that, for the process to be functionally separate from the representative role of the profession, the Benchers of the Inn of Court, which has no representative function, should have responsibility for the formal complaints-handling role.  That is catered for in clause 12 and schedule 2.
The provisions are broadly the same for solicitors.  Schedule 3 notes that no members of the council of the Law Society may serve on a complaints committee.  Again, the purpose is to maintain functional separation from the representative body.
The complaints committee to be set up for barristers by the Benchers and for solicitors by the Law Society must contain, in keeping with Bain, a lay chair and a lay majority.  The relevant schedules ensure that that will indeed occur.  That was a central plank of the Bain proposals, and I believe it is right and proper that the emphasis move from professional-led complaints committees to lay-led complaints committees.
A number of clauses on the scheme for barristers and that for solicitors relate to the jurisdiction of the relevant complaints committee and how it should be used.  I draw Members' attention to the following points.  First, I believe that the strength of the new arrangements will be to place a greater emphasis on good client-care relationships.  The system has, as its focus, the person who goes into his solicitor’s office, or has an interface with a barrister, and does not receive the level of service expected.  The Bill will allow that person the chance to remedy that in a measured manner.  Clause 14, for barristers, and clause 32, for solicitors, emphasise that the first step in that process should be for the lawyer and the client to try to resolve the problem informally.
All solicitors are now required to have an informal complaints procedure that is designed to resolve matters early.  Clause 32 underpins that, whilst recognising that there will be times when it will not always be appropriate to use such a process.  Only when that process does not work, or is inappropriate, will the solicitors complaints committee be required.  Clause 14, for barristers, together with clause 11, will ensure that the Bar Council has a process in place for complaints to be considered before they are elevated to the Bar complaints committee.
Clauses 17 and 36 will place the procedures and methods of working of the relevant complaints committees with the lay-led committees themselves.  So the lay majority committee will be in charge of issues such as the investigation, determination and consideration of complaints and can make appropriate rules for the range of relevant matters relating to the complaints-handling process.
Clause 19, for barristers, and clause 38, for solicitors, set out a broader range of powers that relate to the determination of complaints.  One of the points raised by Bain during its work was the lack of appropriate redress for complainants.  These clauses set out, in statutory terms, the range of options that the complaints committee will have about complaints, and they vary in effect and scope.  Sometimes, for example, complainants are simply looking for an acknowledgement that something has gone wrong and that it is not their fault.  A simple apology may suffice — a point that was welcomed by, amongst others, the Lay Observer in his response to the consultations — but, at other times, it is appropriate for the level of response to be stronger.  One of the weaknesses of the existing system is the inability for compensation to be paid in appropriate cases.  So, as well as including provisions that will allow complaints committees to determine fees that should be payable, the Bill provides that the committees may be able to award compensation.
Bain considered that there should be two aspects to this.  First, when a complainant has suffered inconvenience or distress due to the poor service of his or her lawyer, Bain considered that it was reasonable for compensation to be paid.  The complainant may have suffered loss, and it is right that he or she should be compensated.  Secondly, Bain recommended that, when loss was suffered by a complainant due to the negligence of the lawyer, it would be appropriate for a complaints committee to award compensation when the loss was of a relatively modest nature.  This would provide a quicker and more cost-effective method of redress, obviating the need for a complainant to take his or her lawyer to court for negligence.
The Bill provides for the relevant complaints committees to pay compensation in these cases.  Bain had initially recommended that the level of compensation should be restricted to £3,500.  That point was raised during the recent consultation, and it led to different views.  In England and Wales, for example, the limit in the scheme is £50,000.  However, I am concerned that the initial rationale presented by Bain of providing a simple, quick and user-friendly scheme for complainants could be compromised by complaints committees having such levels of compensation at their disposal.  Insurance companies would have to be involved, and that would, to my mind, defeat the purpose of the recommendations.
With the figure of £3,500, I have borne in mind the lapse of time since Bain, and I am persuaded that a figure of £5,000 strikes the correct balance.  In particular, with this amount being below the excess of the solicitors' master policy, it is unlikely that insurers will be exercised by this, at least for solicitors, and I would expect that the average award figure will be significantly lower.  Indeed, in England and Wales, even with the £50,000 cap, the average award was recently noted to be less than £1,000.  In any case, clauses 20 and 39 provide that my Department can vary this amount if the evidence following implementation considers it necessary.
Most of the other provisions in Parts 2 and 3 are supporting in nature, giving the relevant complaints committee the powers to access relevant information and enforce these requirements.  I do not propose to go into detail on those clauses.  As I mentioned, the Bill will be supported by subsequent regulations and will, when enacted and implemented, result in a significant improvement in how complaints against lawyers are handled and discharged.  I consider that it is a proportionate response to the issues that have been raised during the work of the legal services review group and the subsequent consultation carried out by my Department on the draft Bill.  I believe that the relevant professional bodies have a key role to play in how this new system will operate, and I have every confidence that they will react in a positive and responsible manner.  Ultimately, the rights and needs of all those who use legal services will be enhanced.  Therefore, I commend the Bill to the Assembly.

Daithí McKay: Go raibh maith agat, a LeasCheann Comhairle.  In anticipation of this important Bill being introduced to the Assembly, the Committee for Finance and Personnel has been endeavouring to gather evidence proactively on its policy aims and has commissioned research into the approaches being taken in other applicable jurisdictions on the regulation of the legal profession and the handling of complaints.
I welcome the fact that the Bill has finally been introduced to the Assembly, especially given the significant delay in moving things forward since the legal services review group, chaired by Professor Bain, reported with its policy recommendations in 2006.  I echo the Minister's earlier acknowledgement of work carried out by Professor Bain and the group on behalf of the Committee.
It was noted that, in August 2010, the then Finance Minister, Sammy Wilson, indicated that, while he believed that the review group's recommendations were a step in the right direction, he had some reservations that they did not go far enough.  At that time, he stated:
"Users of legal services should have access to a complaints system that is open, transparent and independent and I hope that any future legislation will reflect those aims.  It cannot and must not be left to solicitors to regulate themselves."
I mention that at the outset because it is important that the detailed provisions are carefully scrutinised at Committee Stage to ensure that they are sufficiently robust in that regard.  It has already been noted during Committee discussions that a power relationship exists between lawyer and client.  We need to be careful to factor that in when identifying and assessing evidence.  Obviously, the consumer perspective can, to a certain extent, be gauged through representative bodies.  However, the question arises of whether such channels receive only the most persistent of complainants in that area.
While we must ensure that a balance is struck and that the new arrangements are proportionate, they also need to command the confidence of the general public.  To achieve that, we need three things.  First, we need to be sure that we have the full picture of the level and scale of complaints on the ground, particularly those that go unresolved.  Only then can we be confident that we are striking the correct balance in making informed decisions on the issue of proportionality.  The lack of certainty on this was highlighted in comments by the Law Centre in a written submission to the Committee.  In reflecting on the apparently low number of complaints here, it cautioned:
"This may reflect high levels of satisfaction with the work of solicitors, a lack of awareness of the complaints mechanisms or a lack of faith in a solicitors' body investigating its own members.  There is no empirical evidence of which it is."
The Law Centre also queried whether the legal profession had ever done any surveys of consumer confidence in complaints-handling procedures, and, if so, what the outcomes were.
Secondly, the complaints system needs to be easily accessible and transparent.  Thirdly, we need to be sure that the oversight commissioner will have the necessary powers and duties to fulfil the role effectively.
On behalf of the Committee, I take this opportunity to thank departmental officials and other stakeholders, including the Law Society, the Bar Council and the Lay Observer, who have contributed with their evidence to date.  I look forward to that continuing as the Bill progresses through the House.
Subject to the Bill passing this stage today, I am sure that the Committee will build on the preliminary scrutiny to produce an evidenced-based report to the Assembly, with robust conclusions and recommendations for Members to consider in advance of Consideration Stage.  As indicated, it will be important that the Committee explores how the views of the end users, including hard-to-reach groups, might be heard directly, thereby ensuring a balanced body of evidence on which the Committee can base its recommendations.
In terms of the principles of the Bill, the explanatory memorandum describes the chosen option as:
"A copper-bottoming of the existing complaints-handling process of both professional bodies, with the move away from professionally-led control to a system of lay Chair, lay majorities with enhanced powers, given suitable strengthened oversight by way of a LSOC with greater authority and power".
The Department argues that this approach, as opposed to fully independent structures for complaints and regulation, is proportionate for this jurisdiction.  The Committee has not, at least not at this stage, disputed that assertion.  It has noted that the Law Society and the Bar Council state that barristers and solicitors receive few complaints.  However, members also noted that, in the case of solicitors, for example, information on such complaints is not recorded by the Law Society until it becomes involved in the process.
The system, therefore, works on the basis of complaints being filtered upwards.  This, in itself, may be appropriate, but I believe that, in tailoring the new arrangements, we need to be clear on the quantum of complaints and that the Oversight Commissioner is not just seeing the tip of the iceberg of issues that go unresolved.
Given that we are debating only the principles of the Bill today, I will not go into detail on the Committee's deliberations to date.  However, the headlines are that the Committee has raised queries on a range of key issues, including the scope for a robust mechanism for recording all complaints, not just those that are logged once the later stages of the complaints process has been instigated; the role and functions of the Oversight Commissioner, including the adequacy of the various powers and duties provided for in the Bill; the potential for the Bill to apply some aspects of the model in Scotland for handling conduct and service complaints; how the Oversight Commissioner will be appointed and the term of office; how a complaint can be defined to ensure consistent application by both professions; how laypersons will be appointed to the respective complaints committees in the Bar Council and the Law Society and how this will be overseen by the Oversight Commissioner; the funding arrangements for the Oversight Commissioner; and the rate of levy applicable and how that will be proportionate to the size of the legal practice.
These, and other issues, remain to be teased out in more detail at Committee Stage.  The Finance Committee will issue its call for evidence and invite formal written submissions from all who have an interest.  I expect that it will also wish to commission further research and look more closely at any lessons that we may be able to apply from how the arrangements in Scotland have worked in practice and what is proposed under the new legislation in the South.
To conclude, a LeasCheann Comhairle, on behalf of the Committee, I welcome this important Bill to the House today, and I have no doubt that the Committee will ensure that it plays its part in the robust scrutiny of the detailed provisions of the Bill as it is referred for Committee Stage.

Paul Girvan: I support the Second Stage of the Legal Complaints and Regulation Bill.  We had the opportunity to visit the Law Society and the Bar Council on 29 January 2014.  I appreciate that some of the points that the Chair has just alluded to are some of the issues that were brought forward.  They relate to determining how complaints are logged and controlled and ensuring, as has already been stated, that this is not just the tip of the iceberg and that confidence is given to members of the public who are not in the legal profession and who feel that it is not right to complain because it is something of a cartel operated by solicitors and barristers, present company excluded.  It is relevant that they have the confidence to believe in the independence of the investigation and the thorough delivery of it.
I appreciate that some weighting could be put in to ensure that the spokesperson and the chairperson of the panel are laypeople, that there would be a balance in favour of those who are not necessarily looking at it totally from a legal perspective, and that they do not just protect their colleagues or those whom they have affiliations with.  They would be there to ensure that justice is not just seen to be done but is done and that a complaint is dealt with in a fair and equitable fashion.
As a consequence, we have the bones of something on which to work.  I appreciate that there will be further scrutiny of the Bill at Committee.  There will be an opportunity to receive additional evidence from those who want to contribute; they will be called before the Committee, and that will be of help.  What we have is some way of balancing it.  There is concern about the delay in something as important as this coming before us, considering that the review took place in 2006 and we are just getting it in 2015.  It has been somewhat dragged out; that is all I will say.
I will maybe use our court system as evidence of how things can be somewhat dragged out and not always the most efficient in some ways.  Perhaps the efficiency or inefficiency of our court process and system is a debate for another day; it is another matter.  As it stands, we are here to support the moving on of the Legal Complaints and Regulation Bill.  I feel that there is an attempt here to address what has been very much an oversight.

Alban Maginness: On behalf of the SDLP, I support the Bill.  The Bill strikes a fair balance; I think that that is the important aspect of it.  The Minister has described it as proportionate.  I agree with the Minister in that regard.
The Bill, of course, finds its genesis in the report of Professor Bain, who did a thorough piece of work in relation to the legal profession, particularly legal complaints against professionals within both branches of legal services here in Northern Ireland.  The report by Professor Bain was, I think, a very fair and balanced report, and one which recognised the differences between here and England and Wales.  I think that that was an important contribution to the analysis of what needed to be done here, because, in his view, the approach that was taken in England and Wales was not the appropriate approach to be taken here.  He specifically found that there was a very different legal system here in Northern Ireland, compared with that in England and Wales, so the Clementi-type solution was not suitable.
We are indebted to Professor Bain.  His contribution to public life here has been very significant and, in relation to this piece of work, I think, very valuable.  It is a pity that, although the report was compiled in 2006, it has taken nine years for the matter to get to the Assembly in its present form.  Nonetheless, one welcomes the fact that the Bill is before the House now and will be considered thoroughly in due course by the Finance and Personnel Committee.
It is important to establish the principle that complaints by the public against professional bodies should not be exclusively arbitrated or judged by that professional body.  Whether it be complaints against solicitors or barristers, there should be a significant lay element involved in assessing and dealing with those complaints.  The Bill requires a greater involvement of laypeople and greater participation in the process of analysing and dealing with complaints.  That is to be welcomed.  The idea of a profession simply policing itself is wrong in principle.  We are now addressing that aspect of the complaints system, and I think that it is very, very important to remember that.
The legal profession, whether it be barristers or solicitors, I believe, is supportive of the approach in the Bill.  When the Committee comes to consider the Bill in detail, it is important that it is closely examined in relation to how that profession proposes to deal with the new system.  I think it is important to have positive engagement with the legal petitioners on the Bill.
Professor Bain found that the professional bodies had a reasonably good record of self-regulation, but, despite that, he was insistent and recommended that there be greater transparency and oversight of the function.  Thus we have the commissioner, who I believe will exercise a very important role.  If the new system does not work, it will be subject to public scrutiny and to further scrutiny by the House and the Executive.  I think it is important that that be noted, because if this system fails, we will have to look afresh to see how it can be improved.
However, I am fairly confident that this new system will receive the support of the public, as well as of the professions, and I think it is important that we encourage a close and critical examination of the new system by the public at large.  I also think that legislators within this House should seriously examine every aspect of this so that we get it right from day one.
I do not want to go over the ground that the Minister very meticulously outlined.  I agree in the main with what she said.  I think that she is striking the right approach to compensation.  I believe that we can look forward to a good piece of legislation that will enhance both branches of the legal profession and the confidence of the public that those professional people are carrying out their work properly and take complaints seriously.  I think that that is very important within our society.
I will leave it there, and I look forward to further proceedings on the Bill.  I give apologies on behalf of Dominic Bradley, who is unable to attend today for family reasons.

Leslie Cree: I rise as the Ulster Unionist member of the Committee for Finance and Personnel.  The difficulty now is that so much has already been said, and I pay tribute to the Minister for her very full résumé of the Bill, aided and abetted by my colleagues in the House.
Just by way of overview, the Bill sets out to improve complaints-handling systems and is the result of some 10 years of consideration and consultation.  It builds on the existing processes of both professional bodies and seeks to appoint a legal services oversight commissioner.  That post would be financed by a levy to be applied to the relevant professional bodies.  The Department of Finance and Personnel will also have the power to pay or defray certain costs of the commissioner.  A very important issue is that there is an appeal function to the High Court in the Bill.
As the Bill has been under consideration for a long period, I understand that its clauses are acceptable to the professional bodies.  It will improve on the existing situation and will be of benefit to the public at large.  Therefore, on behalf of the Ulster Unionist Party, I welcome the Bill and am happy to see it proceed to the next stage.

Michaela Boyle: Go raibh maith agat, a LeasCheann Comhairle.  I welcome the opportunity to speak on the Legal Complaints and Regulation Bill, which is before the House today.  I will do my best not to rehearse what has been said.
I, too, thank those who came to the Committee to brief members on the new reforms, which will mean that members of the legal profession can be held to account on complaints in an open and transparent manner.
It has already been alluded to that, in 2006, Professor Bain carried out a review to regulate lawyers and solicitors here.  Substantial evidence was gathered for Professor Bain to make his 42 recommendations, which covered complaints, regulation and competition.  In presentations to the Committee, what stood out above all the rest was the way in which complaints were handled and processed in this jurisdiction.  There was a different process here for handling complaints, and there was evidence that what worked well in England and Wales was not appropriate for here.
Briefings to the Committee indicated that the general public were almost reluctant to make a complaint against the legal profession, and that they seemed to have little confidence to make a complaint, as complaints were normally dealt with in-house.  Complainants were not fully aware of how or what the system and process were, in the current framework, and there was lack of communication between solicitors and clients, which came across in the briefings to the Committee.  Most people making a complaint fell at the first hurdle due to the complexity of the system.  They were not aware of how to take the issue further, due to their lack of understanding of how the framework and system operated, and therefore the nature or seriousness of complaints was never revealed, due to the lack of data and proper recording of complaints.  The Bill will go some way to addressing those issues.
The legal services oversight commissioner and lay chairs will be independent from the legal profession, which has to be welcomed.  The commissioner will have the power to ensure that there is transparency throughout the complaints-handling procedure.  The commissioner will also be able to make recommendations on how the laypersons and their committees receive training for the job, which is vitally important.  It will be the duty of the commissioner to review and report on any issues pertaining to regulation or organisation of the Law Society or the Bar that may be directed for consideration by the Department of Finance and Personnel.  Any such reports should be published by the commissioner.  That is also a welcome step.
As this part of the Bill is for consideration, I believe that the Bill will go some way towards instilling confidence in the public that they will be able to achieve the outcomes they wish for when making a complaint or going through the appeals process.  For many, this may be too little, too late.  The Bill will, however, address the outdated complaints system that we currently have in place.  I, like others, look forward to working with members of the Committee on the core focus of the Bill, which sits at the heart of the best interests of the public.  Therefore, I support the Bill.

John McCallister: I will be fairly brief since, as a member of the Finance and Personnel Committee, I will have the opportunity to scrutinise the Bill, provided it gets through this stage.  We have rushed so fast at the process — I think Mr Cree said that it has only been 10 years.  So, in the best traditions of the Assembly, we are rushing this through.
There is much to welcome.  Despite all the difficulties we are having with welfare reform and possible Budget difficulties, today is a great reason as to why the Assembly should be here.  We are debating mental health and capacity, and now the Bill on legal complaints, and that is what the Assembly should be about.  It is at its best when it is scrutinising legislation.
The broad principles of the Bill before us are about separating out regulation, which I think is an important step forward.  It is an improvement and something that is long overdue.  I recognise the work of the Minister and others in getting to this stage, and of Alasdair MacLaughlin and people before him, for moving it on and progressing it and giving a sense of independence.  That is something that we should embrace and look forward to.
I also look forward to any improvements and changes that the Committee can make in its call for evidence and in scrutinising the Bill.  I am happy to support the Bill today.

Arlene Foster: I thank Members for their contributions to the debate on the Bill today.  It has been useful and has raised some interesting issues, and I reiterate at the outset that the Bill has come around, as has been referred to, after considerable work.  Yes, it has taken some time to get to here, but we have been consulting with interested parties, and I think that there is a body of support for it to now move forward.
I want to refer to a number of issues.  The Bill will now go for more detailed scrutiny, and there will be an opportunity to look at some of the issues that have been mentioned around the House.  Mr McKay, as Chair, broadly welcomed the Bill and its principles but indicated some concerns about knowing the full picture of complaints on the ground.  He is right in saying that we do not know why we have fewer complaints here in Northern Ireland than in other similar jurisdictions.  It is important that we try to get to the bottom of that, and I hope that the Committee will be able to look at that and at the empirical evidence and perhaps hear from some people who have been through the process.  The new oversight commissioner will have an important role to play in relation to the points that Mr McKay made.
It is important that we are making the change from self-regulation to more involvement of the lay representatives, but it is also important that the professional bodies continue to be involved in the complaints system as well, so that they can have a role in trying to resolve some of those complaints at an early stage, because, often, as I indicated in my opening remarks, it is not about compensation or about a long, drawn-out affair but is about acknowledging that things did not go right and apologising for that.  Sometimes, that is all that the customer or the client will want.
What level will the penalty against the professional bodies be set at?  The maximum level will be set by subsequent regulations, and I have yet to finalise a figure for that.  It is important that it is a proportionate figure and, indeed, is commensurate with the size of the legal profession in Northern Ireland.  Of course, those regulations will be consulted upon and laid in draft at the Assembly to allow those who want to comment on them to do so.
Mr Girvan and others referred to the delay in this matter.  The Bill was considered by the previous mandate, but, for a number of reasons, mainly political, it did not proceed.  My predecessors in this mandate, Mr Wilson and Mr Hamilton, did further work on the Bill, and I thought that, given the lapse of time, it was right that the Department went out to consult on the provisions to see whether the conclusions that Bain came to are as relevant today as they were in 2006.  I hope that explains that.  The fact is that the Bill is now before the House.  I welcome the consensus that it is proportionate and has a fair balance.  Mr Maginness and Mr Cree commented on that.
Ms Boyle referred to the fact that public knowledge about the complaints process and about complaining about solicitors is not as high as she would like it to be or as high as it should be.  I do not disagree with that, and I hope that the process of the Bill will increase the knowledge of people's rights.  I know that the Consumer Council and the Federation of Small Businesses are content with the process that we have set forward under the Bill, and I look forward to others coming to the Committee and raising their voices in relation to the process.  Even the fact that we are having this discussion around the new Bill will raise the profile of regulation and of the fact that people can make complaints if they are unhappy about the services that they have received from either their solicitor or barrister.
We look forward to scrutinising the Bill in detail.  In my opinion, this is an important Bill.  It will significantly improve how complaints are handled against the legal profession, be that solicitors or barristers, and it will lead to a more open and transparent system.  I think that that is what the House should be engaged in and, in doing so, it will help users of legal services right across Northern Ireland.  Therefore, I commend the Bill to the Assembly.
Question put and agreed to.

Resolved:
That the Second Stage of the Legal Complaints and Regulation Bill [NIA 50/11-16] be agreed.

John Dallat: Members will take their ease before we proceed to the next piece of business.

Justice Bill: Further Consideration Stage

John Dallat: I call the Minister of Justice, Mr David Ford, to move the Bill.
Moved. — [Mr Ford (The Minister of Justice).]

John Dallat: Members will have a copy of the Marshalled List of amendments detailing the order for consideration.  The amendments have been grouped for debate in my provisional grouping of amendments selected list.  There are three groups of amendments, and we will debate the amendments in each group in turn.
The first debate will be on amendment Nos 1 to 5, 8 to 10, 13, 14, 16, 18, 19 and 22, which are consequential and technical amendments relating to domestic violence and child protection, committal reform and the powers of the Department in respect of secondary legislation.  The second debate will be on amendment Nos 6 and 7, which deal with early release conditions and sentencing proposals.  The third debate will be on amendment Nos 11, 12, 15, 17, 20 and 21, which deal with firearms.
I remind Members intending to speak that, during the debates on the three groups of amendments, they should address all of the amendments in each group on which they wish to comment.  Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate.  If that is clear, we shall proceed.
Clause 6 (Consequential amendments)

John Dallat: We now come to the first group of amendments for debate.  With amendment No 1, it will be convenient to debate amendment Nos 2 to 5, 8 to 10, 13, 14, 16, 18, 19 and 22.  These amendments are consequential to the decisions made by the House at Consideration Stage.  There is one non-departmental amendment in the group in relation to vulnerable witnesses in committal reform.
The rest of the group comprises departmental amendments to facilitate the inclusion in the Bill of amendments relating to domestic violence and child protection, committal reform and the powers of the Department in respect of secondary legislation. Amendment No 3 is mutually exclusive with amendment No 4.  Amendment No 14 is consequential to amendment No 1.  Amendment Nos 13, 16 and 19 are consequential to amendment No 9. Amendment No 22 is consequential to amendment No 2.
I call the Minister of Justice Mr David Ford to move amendment No 1 and to address the other amendments in the group.

David Ford: I beg to move amendment No 1:
In page 4, line 40, at end insert&quot;(2) The Department may by order make such supplementary, incidental or consequential provision as it considers appropriate in consequence of, or for giving full effect to, this Part.(3) An order under subsection (2) may amend, repeal, revoke or otherwise modify any statutory provision.&quot;.The following amendments stood on the Marshalled List:
No 2:  In clause 7, page 5, leave out lines 7 to 12 and insert&quot;7.—(1) The Magistrates’ Courts (Northern Ireland) Order 1981 is amended as set out in subsections (2) to (5).(2) After Article 29 insert?—‘Committal proceedings for indictable offences29A.—(1) Committal proceedings in a magistrates’ court in relation to an indictable offence are to be conducted?—  a) in a case where the court directs under this Article that a preliminary investigation is to be held, by way of a preliminary investigation;  (b) in all other cases, by way of a preliminary inquiry.(2) An accused may apply to the court for a direction that a preliminary investigation is to be held.(3) Magistrates’ court rules may make provision in relation to an application under paragraph (2), including provision?—  (a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;  (b) requiring an application to be made before a prescribed time;  (c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).(4) The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice.(5) In determining an application under paragraph (2) the court shall in particular have regard to?—  (a) the nature of the offence or offences charged;  (b) the interests of the persons likely to be witnesses at a preliminary investigation.”.(3) In Article 30 (preliminary investigation) for paragraph (1) substitute?—“(1) This Article applies where committal proceedings are conducted by way of a preliminary investigation following a direction under Article 29A.”.(4) Omit Article 31 (preliminary inquiry at request of prosecution).(5) In Article 32 (preliminary inquiry: service of documents)?—  (a) in paragraph (1) for the words from the beginning to the end of sub-paragraph (a) substitute?—  “(1) A reasonable time before the day fixed for the conduct of committal proceedings, the prosecution shall?— (a) provide the clerk of petty sessions with copies of the documents mentioned in sub-paragraph (b); and”; (b) in paragraph (1)(b) omit?—   (i) the words “a copy of that notice together with”; and   (ii) the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;  (c) omit paragraph (3).(6) In section 4 of the Criminal Jurisdiction Act 1975 (trial of extra-territorial offences) for subsection (3) substitute?—“(3) Where a person is charged with an extra-territorial offence so much of Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981 as affords to the accused a right to apply for a direction that a preliminary investigation is to be held shall not apply, and the procedure shall be by way of preliminary inquiry under that Order, and not by way of preliminary investigation.”.(7) Section 3 of the Justice and Security (Northern Ireland) Act 2007 (committal proceedings for trial without a jury) is repealed.&quot;. — [Mr Ford (The Minister of Justice).]No 3:  In clause 8, page 5, leave out lines 14 to 16 and insert&quot;8.—(1) Article 34 of the Magistrates’ Courts (Northern Ireland) Order 1981 (giving of evidence on oath at preliminary inquiry) is amended as follows.(2) After paragraph (1) insert?—“(1A) The prosecution or the accused may apply to the court for leave to require a person to attend and give evidence on oath in accordance with paragraph (2).(1B) Magistrates’ court rules may make provision in relation to an application under paragraph (1A), including provision?—  (a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;  (b) requiring an application to be made before a prescribed time;  (c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).(1C) The court, after considering the application and any representations made to the court, may give leave to the applicant if (and only if) the court is satisfied that the interests of justice require it.(1D) In determining an application under paragraph (1A) the court shall in particular have regard to?—  (a) the nature of the offence or offences charged;  (b) the interests of the persons likely to be required to give evidence at the preliminary inquiry.(1E) Where leave is granted to one party under paragraph (1C), the court may (without any application) grant leave to the other party to require a person to attend and give evidence on oath in accordance with paragraph (2).”.(3) In paragraph (2) for the words from the beginning to “may each require” substitute “The court (of its own motion), the prosecution (if granted leave under paragraph (1C) or (1E)) and the accused (if granted such leave) may each require”.&quot;. — [Mr Ford (The Minister of Justice).]No 4:  In clause 8, page 5, line 16, after &quot;justice&quot; insert&quot;, with the presumption of exemption from giving evidence on oath to a vulnerable witness; a victim of rape or a violent sexual assault unless deemed that exceptional circumstances exist&quot;. — [Mr McCartney.]No 5:  In clause 48, page 35, line 1, leave out subsections (2) to (4) and insert&quot;(2) In Article 49 (1) (interpretation of Part 3)?—   (a) after the definition of “agencies” insert?— “ “child” means a person under the age of 18; “conviction” includes?—   (i) a conviction by or before a court outside Northern Ireland;   (ii) any finding (other than a finding linked with a finding of insanity) in any criminal proceedings that a person has committed an offence or done the act or made the omission charged;   (iii) a caution given to a person in respect of an offence which, at the time when the caution was given, the person has admitted;”;(b) after the definition of “specified” insert?—  “ “relevant previous conviction”, in relation to a person, means a conviction for a sexual or violent offence by reason of which the person falls within a specified description of persons;”.(3) In Article 50 (guidance to agencies on assessing and managing certain risks to the public) after paragraph (2) insert?—“(2A) Guidance under this Article must contain provisions about arrangements for considering the disclosure, to any particular member of the public, of information concerning any relevant previous convictions of a person where it is necessary to protect a particular child or particular children from serious harm caused by that person; and the guidance may, in particular, contain provisions for the purpose of preventing a member of the public from disclosing that information to any other person.”.(4) In Article 50(3) for “Paragraph (2) does” substitute “Paragraphs (2) and (2A) do”.&quot;. — [Mr Ford (The Minister of Justice).]No 8:  In clause 90, page 65, line 7, leave out from beginning to &quot;magistrates’ court&quot; on line 8 and insert&quot;In relation to criminal proceedings in the Crown Court or a magistrates’ court, it is the duty of the court, the prosecution and the defence&quot;. — [Mr Ford (The Minister of Justice).]No 9:  After clause 95 insert&quot;Domestic violence protection notices and ordersDomestic violence protection notices and orders95A. Schedule 6A (which makes provision about domestic violence protection notices and orders) has effect.&quot; — [Mr Ford (The Minister of Justice).]No 10:  After clause 98 insert&quot;Amendment to Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015Amendment to Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 201598A.—(1) Section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (independent guardian) is amended as follows.(2) In subsection (4) for paragraph (a) (which requires arrangements to be made with a charity registered under the Charities Act (Northern Ireland) 2008) substitute?—“(a) be made with a charity;”.(3) In subsection (11) (definitions) after the definition of “administrative decision” insert?—“ “charity” means an institution which is?—(a) a charity within the meaning of section 1 of the Charities Act (Northern Ireland) 2008 or treated as such a charity by virtue of the Charities Act 2008 (Transitional Provision) Order (Northern Ireland) 2013;(b) a charity within the meaning of section 1 of the Charities Act 2011; or(c) a charity within the definition set out in section 106 of the Charities and Trustee Investment (Scotland) Act 2005;”.&quot;. — [Mr Ford (The Minister of Justice).]No 13:  In clause 99, page 70, line 17, leave out &quot;or 51(12)&quot; and insert&quot;, 51(12) or paragraph 10 of Schedule 6A&quot;. — [Mr Ford (The Minister of Justice).]No 14:  In clause 99, page 70, line 18, after &quot;section&quot; insert &quot;6(2)&quot;. — [Mr Ford (The Minister of Justice).]No 16:  In clause 103, page 71, line 11, at end insert&quot;( ) paragraph 10 of Schedule 6A and section 95A so far as relating to that paragraph;&quot;. — [Mr Ford (The Minister of Justice).]No 18:  In schedule 1, page 87, line 8, after &quot;preliminary inquiry&quot; insert &quot;or a preliminary investigation&quot;. — [Mr Ford (The Minister of Justice).]No 19:  After schedule 6 insert&quot;SCHEDULE 6ADOMESTIC VIOLENCE PROTECTION NOTICES AND ORDERSPower to issue a domestic violence protection notice1.—(1) A police officer not below the rank of superintendent (“the authorising officer”) may issue a domestic violence protection notice (“a DVPN”) under this paragraph.(2) A DVPN may be issued to a person (“P”) aged 18 years or over if the authorising officer has reasonable grounds for believing that?—	(a)	P has been violent towards, or has threatened violence towards, an associated person, and	(b)	the issue of the DVPN is necessary to protect that person from violence or a threat of violence by P.(3) Before issuing a DVPN, the authorising officer must, in particular, consider?—	(a)	the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),	(b)	the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN,	(c)	any representations made by P as to the issuing of the DVPN, and	(d)	in the case of provision included by virtue of sub-paragraph (8), the opinion of any other associated person who lives in the premises to which the provision would relate.(4) The authorising officer must take reasonable steps to discover the opinions mentioned in sub-paragraph (3).(5) But the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN.(6) A DVPN must contain provision to prohibit P from molesting the person for whose protection it is issued.(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.(8) If P lives in premises which are also lived in by a person for whose protection the DVPN is issued, the DVPN may also contain provision?—	(a)	to prohibit P from evicting or excluding from the premises the person for whose protection the DVPN is issued,	(b)	to prohibit P from entering the premises,	(c)	to require P to leave the premises, or	(d)	to prohibit P from coming within such distance of the premises as may be specified in the DVPN.Contents and service of a domestic violence protection notice2.—(1) A DVPN must state?—	(a)	the grounds on which it has been issued,	(b)	that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPN,	(c)	that an application for a domestic violence protection order (“a DVPO”) under paragraph 4 will be heard within 48 hours of the time of service of the DVPN and a notice of the hearing will be given to P,	(d)	that the DVPN continues in effect until that application has been determined, and	(e)	the provision that a court of summary jurisdiction may include in a DVPO.(2) A DVPN must be in writing and must be served on P personally by a constable.(3) On serving P with a DVPN, the constable must ask P for an address for the purposes of being given the notice of the hearing of the application for the DVPO.Breach of a domestic violence protection notice3.—(1) A person arrested by virtue of paragraph 2(1)(b) for a breach of a DVPN must be held in custody and brought before the court of summary jurisdiction which will hear the application for the DVPO under paragraph 4?—	(a)	before the end of the period of 24 hours beginning with the time of the arrest, or	(b)	if earlier, at the hearing of that application.(2) If the person is brought before the court by virtue of sub-paragraph (1)(a), the court may remand the person.(3) If the court adjourns the hearing of the application by virtue of paragraph 4(7), the court may remand the person.Application for a domestic violence protection order4.—(1) If a DVPN has been issued, a constable must apply for a DVPO.(2) The application must be made by complaint to a court of summary jurisdiction.(3) The application must be heard by the court not later than 48 hours after the DVPN was served pursuant to paragraph 2(2).(4) A notice of the hearing of the application must be given to P.(5) The notice is deemed given if it has been left at the address given by P under paragraph 2(3).(6) But if the notice has not been given because no address was given by P under paragraph 2(3), the court may hear the application for the DVPO if the court is satisfied that the constable applying for the DVPO has made reasonable efforts to give P the notice.(7) The court may adjourn the hearing of the application.(8) If the court adjourns the hearing, the DVPN continues in effect until the application has been determined.(9) On the hearing of an application for a DVPO, Article 118 of the Magistrates’ Courts (Northern Ireland) Order 1981 (summons to witness and warrant for arrest)  does not apply in relation to a person for whose protection the DVPO would be made, except where the person has given oral or written evidence at the hearing.Conditions for and contents of a DVPO5.—(1) The court may make a DVPO if two conditions are met.(2) The first condition is that the court is satisfied on the balance of probabilities that P has been violent towards, or has threatened violence towards, an associated person.(3) The second condition is that the court thinks that making the DVPO is necessary to protect that person from violence or a threat of violence by P.(4) Before making a DVPO, the court must, in particular, consider?—	(a)	the welfare of any person under the age of 18 whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and	(b)	any opinion of which the court is made aware?—	(i)	of the person for whose protection the DVPO would be made, and	(ii)	in the case of provision included by virtue of sub-paragraph (8), of any other associated person who lives in the premises to which the provision would relate.(5) But the court may make a DVPO in circumstances where the person for whose protection it is made does not consent to the making of the DVPO.(6) A DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.(8) If P lives in premises which are also lived in by a person for whose protection the DVPO is made, the DVPO may also contain provision?—	(a)	to prohibit P from evicting or excluding from the premises the person for whose protection the DVPO is made,	(b)	to prohibit P from entering the premises,	(c)	to require P to leave the premises, or	(d)	to prohibit P from coming within such distance of the premises as may be specified in the DVPO.(9) A DVPO must state that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPO.(10) A DVPO may be in force for?—	(a)	no fewer than 14 days beginning with the day on which it is made, and	(b)	no more than 28 days beginning with that day.(11) A DVPO must state the period for which it is to be in force.Breach of a DVPO6.—(1) A person arrested by virtue of paragraph 5(9) for a breach of a DVPO must be held in custody and brought before a court of summary jurisdiction within the period of 24 hours beginning with the time of the arrest.(2) If the court finds that the person has breached the DVPO, the court may?—	(a)	order the person to pay a sum not exceeding £5000; or	(b)	commit the person to prison for a fixed period not exceeding 2 months.(3) Payment of any sum ordered to be paid under sub-paragraph (2)(a) is enforceable in the same manner as payment of a sum adjudged to be paid by a conviction.(4) If the matter is not disposed of when the person is brought before the court under sub-paragraph (1), the court may remand the person.(5) In section 44(5) of the Judicature (Northern Ireland) Act 1978 (appeals relating to punishment of contempt and other defaults) in paragraph (c) after “Article 112 of the Magistrates’ Courts (Northern Ireland) Order 1981” insert “or paragraph 6 of Schedule 6A to the Justice Act (Northern Ireland) 2015”.Further provision about remand7.—(1) This paragraph applies for the purposes of the remand of a person by a court under paragraph 3(2) or (3) or 6(4).(2) The court may remand the person?—	(a)	in custody, that is to say, commit the person to custody to be brought before the court at the end of the period of remand; or	(b)	on bail, that is to say, take from the person a recognizance conditioned for subsequent appearance before the court.(3) If the person is remanded in custody, the court may give its consent to the person being remanded on bail in accordance with sub-paragraph (2)(b) in which event the court must fix the amount of the recognizance with a view to its being taken subsequently.(4) Subject to sub-paragraphs (8), (11) and (12), the period for which a person is remanded in custody must not exceed?—	(a)	in case where the person is before the court and consents, 28 days;	(b)	in any other case, 8 days.(5) The period for which a person is remanded on bail must not exceed 28 days unless both the person and the relevant police officer consent.(6) For the purposes of sub-paragraph (5) the relevant police officer is?—	(a)	in the case of a remand prior to the hearing of an application for a DVPO, the authorising officer;	(b)	in any other case, the constable who applied for the DVPO.(7) In the case of a person over the age of 21, the power to remand in custody includes power, on an application made by a police officer not below the rank of inspector, to commit that person to?—	(a)	detention at a police station; or	(b)	the custody (otherwise than at a police station) of a constable.(8) The period for which a person is remanded under sub-paragraph (7) must not exceed 3 days.(9) A person shall not be committed to detention at a police station under sub-paragraph (7)(a) unless there is a need for the person to be so detained for the purposes of inquiries into a criminal offence; and, if a person is committed to such detention?—	(a)	the person shall, as soon as that need ceases, be brought back before the court;	(b)	the person shall be treated as a person in police detention to whom the duties under Article 40 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (responsibilities in relation to persons detained) relate; and	(c)	the detention of the person shall be subject to periodic review at the times set out in Article 41 of that Order (review of police detention).(10) A person shall not be committed to the custody (otherwise than at a police station) of a constable under sub-paragraph (7)(b) unless there is a need for the person to be kept in such custody for the purposes of inquiries into a criminal offence; and if a person is committed to such custody, the person shall, as soon as that need ceases, be brought back before the court.(11) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made; and if the person is remanded in custody for that purpose, the remand may not be for more than 21 days.(12) If the court has reason to suspect that the person is suffering from mental illness or severe mental impairment within the meaning of the Mental Health (Northern Ireland) Order 1986, the court has the same power to remand a person under Article 42 of that Order (remand to hospital for medical report) as it has under that Article in the case of an accused person (within the meaning of that Article).(13) The court may order a person to be brought before it at any time before the expiration of the period for which the person has been remanded.(14) The court may, when remanding the person on bail, require the person to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with persons likely to give evidence at the hearing or otherwise obstruct the course of justice.Guidance8.—(1) The Department may issue guidance relating to the exercise by a constable of functions under this Schedule.(2) A constable must have regard to any guidance issued under this paragraph when exercising a function to which the guidance relates.(3) Before issuing guidance under this paragraph, the Department must consult?—	(a)	the Chief Constable,	(b)	the Policing Board, and	(c)	such other persons as the Department thinks fit.Interpretation9.—(1) In this Schedule?—“associated person” means a person who is associated with P within the meaning of Article 3 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;“the authorising officer” has the meaning given by paragraph 1(1);“a DVPN” has the meaning given by paragraph 1(1);“a DVPO” has the meaning given by paragraph 2(1)(c);“P” has the meaning given by paragraph 1(2).(2) In calculating?—	(a)	when the period of 24 hours mentioned in paragraph 3(1)(a) or 6(1) ends, or	(b)	when the period of 48 hours mentioned in paragraph 4(3) ends,Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971 are to be disregarded.(3) In calculating the length of any period of remand, the period is to be taken as beginning on the day after the person is remanded.Pilot schemes10.—(1) The Department may by order provide for any provision of paragraphs 1 to 9 to come into operation for a period of time to be specified in or under the order for the purpose of assessing the effectiveness of the provision.(2) Such an order may make different provision for different areas.(3) More than one order may be made under this paragraph.(4) Provision included in an order under this paragraph does not affect the provision that may be included in relation to paragraphs 1 to 9 in an order under section 103.&quot;. — [Mr Ford (The Minister of Justice).]No 19:  After schedule 6 insert&quot;SCHEDULE 6ADOMESTIC VIOLENCE PROTECTION NOTICES AND ORDERSPower to issue a domestic violence protection notice1.—(1) A police officer not below the rank of superintendent (“the authorising officer”) may issue a domestic violence protection notice (“a DVPN”) under this paragraph.(2) A DVPN may be issued to a person (“P”) aged 18 years or over if the authorising officer has reasonable grounds for believing that?—	(a)	P has been violent towards, or has threatened violence towards, an associated person, and	(b)	the issue of the DVPN is necessary to protect that person from violence or a threat of violence by P.(3) Before issuing a DVPN, the authorising officer must, in particular, consider?—	(a)	the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),	(b)	the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN,	(c)	any representations made by P as to the issuing of the DVPN, and	(d)	in the case of provision included by virtue of sub-paragraph (8), the opinion of any other associated person who lives in the premises to which the provision would relate.(4) The authorising officer must take reasonable steps to discover the opinions mentioned in sub-paragraph (3).(5) But the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN.(6) A DVPN must contain provision to prohibit P from molesting the person for whose protection it is issued.(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.(8) If P lives in premises which are also lived in by a person for whose protection the DVPN is issued, the DVPN may also contain provision?—	(a)	to prohibit P from evicting or excluding from the premises the person for whose protection the DVPN is issued,	(b)	to prohibit P from entering the premises,	(c)	to require P to leave the premises, or	(d)	to prohibit P from coming within such distance of the premises as may be specified in the DVPN.Contents and service of a domestic violence protection notice2.—(1) A DVPN must state?—	(a)	the grounds on which it has been issued,	(b)	that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPN,	(c)	that an application for a domestic violence protection order (“a DVPO”) under paragraph 4 will be heard within 48 hours of the time of service of the DVPN and a notice of the hearing will be given to P,	(d)	that the DVPN continues in effect until that application has been determined, and	(e)	the provision that a court of summary jurisdiction may include in a DVPO.(2) A DVPN must be in writing and must be served on P personally by a constable.(3) On serving P with a DVPN, the constable must ask P for an address for the purposes of being given the notice of the hearing of the application for the DVPO.Breach of a domestic violence protection notice3.—(1) A person arrested by virtue of paragraph 2(1)(b) for a breach of a DVPN must be held in custody and brought before the court of summary jurisdiction which will hear the application for the DVPO under paragraph 4?—	(a)	before the end of the period of 24 hours beginning with the time of the arrest, or	(b)	if earlier, at the hearing of that application.(2) If the person is brought before the court by virtue of sub-paragraph (1)(a), the court may remand the person.(3) If the court adjourns the hearing of the application by virtue of paragraph 4(7), the court may remand the person.Application for a domestic violence protection order4.—(1) If a DVPN has been issued, a constable must apply for a DVPO.(2) The application must be made by complaint to a court of summary jurisdiction.(3) The application must be heard by the court not later than 48 hours after the DVPN was served pursuant to paragraph 2(2).(4) A notice of the hearing of the application must be given to P.(5) The notice is deemed given if it has been left at the address given by P under paragraph 2(3).(6) But if the notice has not been given because no address was given by P under paragraph 2(3), the court may hear the application for the DVPO if the court is satisfied that the constable applying for the DVPO has made reasonable efforts to give P the notice.(7) The court may adjourn the hearing of the application.(8) If the court adjourns the hearing, the DVPN continues in effect until the application has been determined.(9) On the hearing of an application for a DVPO, Article 118 of the Magistrates’ Courts (Northern Ireland) Order 1981 (summons to witness and warrant for arrest)  does not apply in relation to a person for whose protection the DVPO would be made, except where the person has given oral or written evidence at the hearing.Conditions for and contents of a DVPO5.—(1) The court may make a DVPO if two conditions are met.(2) The first condition is that the court is satisfied on the balance of probabilities that P has been violent towards, or has threatened violence towards, an associated person.(3) The second condition is that the court thinks that making the DVPO is necessary to protect that person from violence or a threat of violence by P.(4) Before making a DVPO, the court must, in particular, consider?—	(a)	the welfare of any person under the age of 18 whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and	(b)	any opinion of which the court is made aware?—	(i)	of the person for whose protection the DVPO would be made, and	(ii)	in the case of provision included by virtue of sub-paragraph (8), of any other associated person who lives in the premises to which the provision would relate.(5) But the court may make a DVPO in circumstances where the person for whose protection it is made does not consent to the making of the DVPO.(6) A DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.(8) If P lives in premises which are also lived in by a person for whose protection the DVPO is made, the DVPO may also contain provision?—	(a)	to prohibit P from evicting or excluding from the premises the person for whose protection the DVPO is made,	(b)	to prohibit P from entering the premises,	(c)	to require P to leave the premises, or	(d)	to prohibit P from coming within such distance of the premises as may be specified in the DVPO.(9) A DVPO must state that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPO.(10) A DVPO may be in force for?—	(a)	no fewer than 14 days beginning with the day on which it is made, and	(b)	no more than 28 days beginning with that day.(11) A DVPO must state the period for which it is to be in force.Breach of a DVPO6.—(1) A person arrested by virtue of paragraph 5(9) for a breach of a DVPO must be held in custody and brought before a court of summary jurisdiction within the period of 24 hours beginning with the time of the arrest.(2) If the court finds that the person has breached the DVPO, the court may?—	(a)	order the person to pay a sum not exceeding £5000; or	(b)	commit the person to prison for a fixed period not exceeding 2 months.(3) Payment of any sum ordered to be paid under sub-paragraph (2)(a) is enforceable in the same manner as payment of a sum adjudged to be paid by a conviction.(4) If the matter is not disposed of when the person is brought before the court under sub-paragraph (1), the court may remand the person.(5) In section 44(5) of the Judicature (Northern Ireland) Act 1978 (appeals relating to punishment of contempt and other defaults) in paragraph (c) after “Article 112 of the Magistrates’ Courts (Northern Ireland) Order 1981” insert “or paragraph 6 of Schedule 6A to the Justice Act (Northern Ireland) 2015”.Further provision about remand7.—(1) This paragraph applies for the purposes of the remand of a person by a court under paragraph 3(2) or (3) or 6(4).(2) The court may remand the person?—	(a)	in custody, that is to say, commit the person to custody to be brought before the court at the end of the period of remand; or	(b)	on bail, that is to say, take from the person a recognizance conditioned for subsequent appearance before the court.(3) If the person is remanded in custody, the court may give its consent to the person being remanded on bail in accordance with sub-paragraph (2)(b) in which event the court must fix the amount of the recognizance with a view to its being taken subsequently.(4) Subject to sub-paragraphs (8), (11) and (12), the period for which a person is remanded in custody must not exceed?—	(a)	in case where the person is before the court and consents, 28 days;	(b)	in any other case, 8 days.(5) The period for which a person is remanded on bail must not exceed 28 days unless both the person and the relevant police officer consent.(6) For the purposes of sub-paragraph (5) the relevant police officer is?—	(a)	in the case of a remand prior to the hearing of an application for a DVPO, the authorising officer;	(b)	in any other case, the constable who applied for the DVPO.(7) In the case of a person over the age of 21, the power to remand in custody includes power, on an application made by a police officer not below the rank of inspector, to commit that person to?—	(a)	detention at a police station; or	(b)	the custody (otherwise than at a police station) of a constable.(8) The period for which a person is remanded under sub-paragraph (7) must not exceed 3 days.(9) A person shall not be committed to detention at a police station under sub-paragraph (7)(a) unless there is a need for the person to be so detained for the purposes of inquiries into a criminal offence; and, if a person is committed to such detention?—	(a)	the person shall, as soon as that need ceases, be brought back before the court;	(b)	the person shall be treated as a person in police detention to whom the duties under Article 40 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (responsibilities in relation to persons detained) relate; and	(c)	the detention of the person shall be subject to periodic review at the times set out in Article 41 of that Order (review of police detention).(10) A person shall not be committed to the custody (otherwise than at a police station) of a constable under sub-paragraph (7)(b) unless there is a need for the person to be kept in such custody for the purposes of inquiries into a criminal offence; and if a person is committed to such custody, the person shall, as soon as that need ceases, be brought back before the court.(11) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made; and if the person is remanded in custody for that purpose, the remand may not be for more than 21 days.(12) If the court has reason to suspect that the person is suffering from mental illness or severe mental impairment within the meaning of the Mental Health (Northern Ireland) Order 1986, the court has the same power to remand a person under Article 42 of that Order (remand to hospital for medical report) as it has under that Article in the case of an accused person (within the meaning of that Article).(13) The court may order a person to be brought before it at any time before the expiration of the period for which the person has been remanded.(14) The court may, when remanding the person on bail, require the person to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with persons likely to give evidence at the hearing or otherwise obstruct the course of justice.Guidance8.—(1) The Department may issue guidance relating to the exercise by a constable of functions under this Schedule.(2) A constable must have regard to any guidance issued under this paragraph when exercising a function to which the guidance relates.(3) Before issuing guidance under this paragraph, the Department must consult?—	(a)	the Chief Constable,	(b)	the Policing Board, and	(c)	such other persons as the Department thinks fit.Interpretation9.—(1) In this Schedule?—“associated person” means a person who is associated with P within the meaning of Article 3 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;“the authorising officer” has the meaning given by paragraph 1(1);“a DVPN” has the meaning given by paragraph 1(1);“a DVPO” has the meaning given by paragraph 2(1)(c);“P” has the meaning given by paragraph 1(2).(2) In calculating?—	(a)	when the period of 24 hours mentioned in paragraph 3(1)(a) or 6(1) ends, or	(b)	when the period of 48 hours mentioned in paragraph 4(3) ends,Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971 are to be disregarded.(3) In calculating the length of any period of remand, the period is to be taken as beginning on the day after the person is remanded.Pilot schemes10.—(1) The Department may by order provide for any provision of paragraphs 1 to 9 to come into operation for a period of time to be specified in or under the order for the purpose of assessing the effectiveness of the provision.(2) Such an order may make different provision for different areas.(3) More than one order may be made under this paragraph.(4) Provision included in an order under this paragraph does not affect the provision that may be included in relation to paragraphs 1 to 9 in an order under section 103.&quot;. — [Mr Ford (The Minister of Justice).]No 22:  In schedule 8, page 140, line 12, leave out from beginning to end of line 13 on page 142 and insert&quot;The Magistrates’ Courts (Northern Ireland) Order 1981 (NI 26)Article 31.In Article 32?—(a) in paragraph (1)(b) the words “a copy of that notice together with” and the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;(b) paragraph (3).The Justice and Security (Northern Ireland) Act 2007 (c. 6)Section 3.&quot; — [Mr Ford (The Minister of Justice).]

David Ford: As you indicated, Mr Deputy Speaker, amendment No 1 stands in my name.  As you also indicated, there are a considerable number of amendments in the group covering a number of issues, all of which are designed to deal with matters raised at Consideration Stage.  I will outline the different areas in turn and trust that I have the support of the House for them.
Amendment No 1 creates a narrower, more focused alternative arrangement for supplementary, incidental or consequential provisions following the removal of clause 86 from the Bill at Consideration Stage.  Amendment No 14 is a direct consequential amendment flowing from amendment No 1. I am sure that I do not need to set out again how and why I felt the need to include clause 86 in the original Bill, but the issue now is how we move on from here.  I remain of the view that the Bill is complex and we need to mitigate the risk that we have missed something crucial to the policy intentions.  Clause 86 has, however, gone, and the question is how to mitigate the risk that remains.
(Mr Deputy Speaker [Mr Beggs] in the Chair)
I am grateful to the Office of the Legislative Counsel (OLC) and to the Committee for their efforts and support in bringing forward this alternative approach, including the fact that the Committee held a special meeting to consider the issue last week. The amendment that I propose contains two specific changes from clause 86 as it was.  First, it is limited to Part 1.  I want to recognise that that was a suggestion made by Paul Frew.  He asked about the possibility of doing that, and the amendment recognises that suggestion.  Part 1, which relates to the single jurisdiction provisions, is where the risk is most likely to arise. Secondly, the amendment is limited in scope compared with clause 86 in order to take account of the Committee's concerns.  With the Committee's support, I was pleased to table the amendment before the House today.  I hope that it addresses its concerns while allowing me some much-needed flexibility to give effect to the provisions in Part 1.
Let me now consider the amendments relating to committal reform, which are amendment Nos 2, 3, 18 and 22. They make specific amendments relating to preliminary investigations and mixed committals and consequential amendments to schedules 1 and 8.  In the context of addressing my amendments, I will also address amendment No 4 in the name of Mr McCartney and colleagues.
On the amendments made at Consideration Stage to clauses 7 and 8, I have to say again that I was surprised that they were supported by the House, given the Committee's previous consideration.  I have given thought to the impact, and I remain concerned about the situation that we are now in.  I am grateful again for the consideration given by OLC to the issue over the past few days.  I believe that the clauses in the Bill as it now stands require significant amendment.  That is, in part, because they take no account of how the revised process will work in practice.
Clauses 7 and 8, as amended at Consideration Stage, are oversimplistic and simply impose a new statement of law on top of an existing body of law without any attempt to reconcile the two.  The conventional approach to amending an existing body of law is to do so by way of textual amendment to the parent legislation.  That enables a complete, coherent and consistent statement of the law to be found in one place.  More fundamentally, the clauses ignore the position of victims.  I spoke about that at Consideration Stage, and other Members, most notably Mr McCartney and Mr Elliott, also questioned the position of vulnerable victims and witnesses.  Indeed, I briefed the Justice Committee last week on the work needed to resolve the issue.
My amendments are intended to operate within the framework of the interests of justice test.  That was the will of the Assembly at Consideration Stage.  I am seeking to amend the Magistrates’ Courts (Northern Ireland) Order 1981 to provide that a preliminary investigation will be held only in the interests of justice.  All other cases will be dealt with by way of a preliminary inquiry. An accused may apply to the court for direction on whether a preliminary investigation is to be held or whether oral evidence at a preliminary inquiry is necessary in the interests of justice.  Court rules will set out the application procedure.  An application will have to set out the grounds on which the application is made.  The rules will also set out the procedure to be followed in determining the application.  The prosecution and the accused will be able to make representations to the court. The court, after considering the application and any representations made to it, may grant the application only if it is satisfied that that is necessary in the interests of justice.  In reaching that decision, the court must give regard to the nature of the offence or offences charged and the interests of the persons likely to be witnesses. The amendments will help to protect the needs of vulnerable victims and witnesses, and I commend them to the House.
I will speak briefly to amendment No 4, which is in the name of Mr McCartney and those of his colleagues and proposes an alternative amendment to clause 8.  I entirely understand the sentiment behind it and accept that it is a well-intentioned alternative to my proposals.  I remind the House that we are in this territory only as result of the amendments that were made to the Department’s proposals at Consideration Stage, when the matter of committal was discussed. However, amendment No 4 does not achieve what the Members who tabled it want to achieve, and a number of issues would need to be addressed if it were to work properly.  The amendment applies only to the giving of evidence on oath at mixed committals, not to preliminary investigations.  It also includes the word "vulnerable", which is problematic.  Although "vulnerable" has an ordinary meaning, it would need to be specifically defined in the context of this legislation. Also, the amendment is limited to victims of rape and sexual assault.  I have to ask why the line has been drawn there.  What about other crimes, such as domestic violence, other crimes of personal violence and other matters that would put individuals at specific risk and specific fear?
It is not clear what account is to be taken of the use of special measures under the Criminal Evidence (Northern Ireland) Order 1999 in relation to the giving of evidence by witnesses, which allow a witness to give evidence and prevents certain witnesses being cross-examined in person by the defence in sexual offence cases and cases involving children. I also believe that "Violent sexual assault" would also have to be defined.  Thought would have to be given to that and care taken that the definition did not inadvertently impact on any existing legislation that deals with sexual assault.  In addition, as I explained to the House, clauses 7 and 8 need to be significantly amended to ensure that the provisions can work within the existing framework of the Magistrates’ Courts (Northern Ireland) Order 1981.  The Member's amendment would not resolve that problem; indeed, it might compound it.
My amendments provide that, when the defence makes an application that oral evidence is needed in the interests of justice, the court must consider the matter with regard to the nature of the offence and the interests of the witnesses likely to give evidence.  That will apply to every offence and every potential witness, and it provides greater protection than is proposed in the amendment tabled by Mr McCartney.  Therefore, I cannot support amendment No 4.  I believe that my amendment is a better way of resolving the issue and covering a wider range of crimes.
Amendment No 5 will make some minor amendments to clause 48, which was inserted into the Bill at Consideration Stage on the proposal of Mr Frew and Lord Morrow. It allows for arrangements to disclose conviction information in respect of those who pose a risk of harm to children.  I emphasise that there is no change of substance to the objective of the provision.  The amendments are largely of a technical nature and are designed to allow for the provision to sit more easily within the current legislative framework for multi-agency risk assessment and management, as set out in Part 3 of the Criminal Justice (Northern Ireland) Order 2008.
The first amendments to the clause will insert a number of definitions into article 49 of the 2008 Order to provide legislative clarity. They include the following definitions of "child" as a person under 18; "conviction" as including both findings of the court and police cautions; and "relevant previous conviction" as a conviction for either a sexual or violent offence as specified in the guidance to agencies that was issued by the Department under article 50 of the 2008 Order.  The remainder of clause 48, which amends article 50 of the Order, has been reworded to take account of the definitions and to remove reference to the information being:
"in the possession of the agencies".
That phrase was considered unnecessary, given that you cannot disclose information that you do not possess.  It was also potentially misleading by suggesting that all agencies specified in article 49 have information to disclose. I understand that the Members who tabled the clause at Consideration Stage are content with those minor changes — for the sake of Hansard, I am looking across the Chamber at Mr Frew, who is nodding at me, so I will take that as assent.  I believe that, when my officials briefed the Justice Committee on this last week, the amendments that I was proposing were acceptable to the Committee, and I hope that the House can agree today to make them.
Clause 90, as amended at Consideration Stage, creates a general duty to progress criminal proceedings in an effort to avoid delay.  Mr Jim Allister spoke to the clause at Consideration Stage and suggested that juries could be captured by the current wording of the clause and potentially feel under pressure:
"to reach a just outcome as swiftly as possible". — [Official Report, Vol 105, No 3, p10, col 2].
As I indicated to the House at Consideration Stage, that was not the policy intent of the clause — that was most certainly not the intention.  I also stated that the duty is appropriately framed to ensure that reaching a just outcome is patently the primary consideration.  However, in the interests of legislative clarity, I have tabled amendment No 8 to make it absolutely and abundantly clear that only the court, the prosecution and the defence will be subject to the general duty.  There will be no application of the general duty to juries.  I trust that that reassures Mr Allister and any Members who had sympathy with the points that he put forward.
I turn to amendment No 9, which introduces new clause 95A and new schedule 6A to allow for the introduction of domestic violence protection notices and domestic violence protection orders in Northern Ireland.  Amendment Nos 13 and 16 are consequential to amendment No 9.  Members will be aware that, following an amendment tabled but not moved by Mrs Dolores Kelly at Consideration Stage, I committed to tabling alternative amendments at this stage.  I am pleased now to speak to the detail of the powers that I have put forward.  The provisions give the police the power to issue a domestic violence protection notice and to apply to the courts for a domestic violence protection order for the purposes of protecting a victim of domestic violence where it has been assessed that they may be at risk of immediate harm and danger.  It also provides for the courts to grant a domestic violence protection order for a maximum period of 28 days, which will provide immediate emergency protection for the victim, allowing them protected space to explore the options available to them and to make informed decisions about their safety.
The amendment ensures proportionality, consistency and appropriate use of the processes.  The police, when considering the need to issue a domestic violence protection notice, will use their professional judgement to determine whether the measures are required to protect a victim.  Similarly, the court will assess the evidence provided to it to ensure that it is satisfied on the balance of probabilities that the perpetrator has been violent towards or has threatened violence towards an associated person.  Additionally, the court must believe that making the domestic violence protection order is necessary to protect that person from violence or threat of violence by the perpetrator.
We have discussed domestic violence in the Chamber on many occasions.  We all acknowledge that it is a dreadful crime and that, when it happens, victims need to be fully protected from any potential further violence.  The legislation offers victims — women and men — the immediate protection that they need in circumstances where they are often very traumatised, vulnerable and need assurance that, for a time, the perpetrator will not be able to enter their home and violently abuse them again.  At present, non-molestation orders and occupation orders offer protection for victims of domestic violence.  However, it is up to the victim to apply for them. In the circumstances following domestic violence, a victim may be emotionally affected and, as a result, may not be capable of seeking the protection that is needed.  Therefore, the measures under the proposed legislation will clearly demonstrate to the victim that the statutory agencies are initiating action on their behalf in order to protect them.  I firmly believe that the measures will enhance our suite of public protection arrangements for victims.
Members will be aware that amendments tabled by the SDLP at Consideration Stage contained elements of a domestic violence disclosure scheme, but they were also not moved.
This aspect was not moved by agreement, on the understanding that I would consult on the introduction of a domestic violence disclosure scheme for Northern Ireland as soon as is practicable.  Since Consideration Stage, the Justice Committee has received briefings from my officials and the PSNI on the matter.  Legislation is not required to operate a domestic violence disclosure scheme, and the consultation will allow me to consider all relevant aspects of introducing such a scheme, including human rights issues.  I am pleased to inform the House that my amendments and my approach of consulting on a domestic violence disclosure scheme have the support of Mrs Kelly and her colleagues.  She is likewise nodding, and I trust that the House will also vote in favour of these changes.
Finally, I turn to the last amendment in this group, amendment No 10, which I have brought forward at the request of the Minister of Health, Social Services and Public Safety to correct an issue with the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, otherwise known as Lord Morrow's Act.  In seeking to implement the provisions of the Act for an independent guardian service, DHSSPS officials identified that, as section 21(4)(a) of the Act was drafted, only those charities registered under section 16 of the Charities Act (Northern Ireland) 2008 would be eligible to apply to provide those independent guardian services.  I understood, from working with Lord Morrow to bring forward the Act, that he specifically sought to have the guardian service provided by a charity, principally to maintain a level of independence from the statutory sector.  The definition of a charity is therefore very important.
To date, only 1,695 charities are currently registered under section 16 of the relevant 2008 Act.  Most are not health and social care charities, and registration will not be completed for some time, potentially for another couple of years.  A specific problem emerges in that some charities, which operate across all three jurisdictions of the United Kingdom, are not required to register in every part of the UK.  Those already registered in England, for example, will not be required to register separately in Northern Ireland; but the wording of section 21(4)(a) of the Human Trafficking Act means that those charities that are registered elsewhere but which operate in Northern Ireland cannot provide guardian services here.  I cannot believe that that was the intent of the House when the Human Trafficking Act was passed, and I certainly do not believe that it was the desire of Lord Morrow or of the Department.
To fix the problem, therefore, section 21(4)(a) of the Human Trafficking Act 2015 needs to be amended, and amendment No 10 does so by redefining the meaning of a registered charity to include charities that are registered in England and Wales and in Scotland.  Clearly, some of the major children's charities are registered technically only in England, but operate here as well.  As a result, the provision of an independent guardian service will be open to all relevant charities registered anywhere in the United Kingdom or on the deemed list in Northern Ireland.  I am pleased to commend this amendment to the House with the support of Lord Morrow to ensure that his Act operates successfully.
That covers all the amendments in group 1, with the exception of Mr McCartney's amendment, which, as I have highlighted, I believe is not as effective as my amendment to the same clause.  I commend the amendments to the House.

Alastair Ross: First, I will address amendment No 1.  The whole House will be relieved to hear that I do not intend to rehearse the arguments that we had when we decided to remove what used to be called clause 86 from the Bill.  Suffice it to say that the Committee’s rationale for its removal was accepted and supported by the entire House.  I am sure that most Members will feel that it was a useful exercise of the Assembly's ability to question and scrutinise the power of the Executive.
Following Consideration Stage, the Minister requested a meeting with myself and the Deputy Chairman of the Committee to discuss the matter, at which he outlined his belief that some mechanism was required to deal with Part 1 of the Bill and mitigate the risk that losing clause 86 has created for the Department.  Part 1, which deals with single jurisdiction for County Courts and Magistrates’ Courts, covers a large number of pieces of legislation, some of which date back to the 1840s and, as the Minister has outlined, is the part of the Bill that the Department is most concerned may need minor amendments later on if relevant pieces of primary legislation are identified that have not been covered in the Bill.
The Minister stated that the intention was for an amendment to provide narrowly defined powers linked only to Part 1, and we agreed that if the Minister provided further information on the proposed amendment the Committee would meet to consider it.  The Minister subsequently provided the rationale for and the text of the proposed amendment, and he attended the Committee on 9 June with his officials to discuss it with members.
The wording of amendment No 1 is significantly limited in scope and effect compared to the original clause 86.  It also only relates to Part 1 of the Bill.  On that basis, the Committee agreed that it is content with the amendment.  When we were considering clause 86, members recognised that Part 1 was the area of the Bill that might require some minor amendments once the legislation was passed, given the volume of other legislation that is affected by the introduction of the single jurisdiction.  Indeed, when officials attended to discuss clause 86, the Committee suggested that the Department should narrow its scope to cover only those parts of the Bill that it believed were most necessary.  That is now the approach that seems to have been adopted by the Minister and the Department.
While I am sure that the Minister will not agree with me, I believe that the scrutiny the Committee brought to clause 86 and the debate that we initiated has been useful and, hopefully, will serve to ensure that all Departments fully consider the scope of the powers that they require and the justification for their inclusion in primary legislation rather than including provisions that provide very wide-ranging powers.  I have no doubt that other Assembly Committees will pay much more attention to what are often termed "technical provisions" in Bills in the future.
Moving on to amendment Nos 2 and 3, which have been brought forward by the Minister, and amendment No 4, which has been brought forward by Mr McCartney, these aim to provide additional protection to vulnerable victims and witnesses and avoid the necessity of them having to give evidence twice, following the Assembly's decision to retain of PIs.  When the Committee considered the original proposals by the Department to abolish preliminary investigations and mixed committals, it noted that, while the proposals aimed to streamline the procedure for moving business from the Magistrates’ Court to the Crown Court and were expected to result in some improvement in efficiency, the Department’s stated primary driver was to reduce the impact on vulnerable victims and witnesses.  From its inquiry into the criminal justice services available to victims and witnesses, the Committee is fully aware of the concerns raised and the difficulties experienced by victims and witnesses in relation to having to give evidence twice.  Members are therefore supportive of the principle of those amendments.  Given that they are mutually exclusive, I assume that agreement can be reached about which will be moved at the end of the debate.
Finally, turning briefly to amendment No 5, which relates to child protection disclosures and the amendments that introduce domestic violence protection orders and notices, the Committee recently received from departmental officials and the Police Service of Northern Ireland a very useful briefing on the purpose and intent of both schemes.  Members explored how both schemes would operate in practice and play a part in protection.  We were also reassured that account has been taken of lessons learnt from the operation of such schemes in other jurisdictions.
Amendment No 10 was not discussed at the Committee, although I am quite sure that Lord Morrow will say that it will make his great Bill even better by ensuring that charities that are registered in Great Britain will still be able to provide the services required.  Perhaps it would be useful if the Minister would provide some clarity over whether that means that internationally based charities would also be able to provide similar services or whether it would be limited to those within the United Kingdom.
I will make no further comment and support the amendments in the group.

Raymond McCartney: Go raibh maith agat, a LeasCheann Comhairle.  I just want to speak to a number of the amendments.  The Chair, on behalf of the Committee, provided the commentary on most of them.  When the Minister was speaking about amendment No 1, I think there was an acceptance.  The Chair laid out clearly, on behalf of the Committee, the reason why we had our reservations about clause 86.  The Minister described the amendment as narrower and more focused, and I think we would agree with that.  It allows us to say — I think it was Paul Frew who brought it up at the Committee — that Part 1 was perhaps the area that needed the latitude and flexibility, given the large number of Acts that the Bill would affect, stretching right back to 1840, as the Chair said.  We will support amendment No 1.
In relation to amendment Nos 2, 3 and 4, I will just speak briefly on amendment No 4, which is tabled in my name, Sean Lynch's and Chris Hazzard's.  The Minister described it as well-intentioned and then started to point out the deficiencies in it, which I think we would accept.  We were trying to demonstrate with that amendment the Minister's concern, which he was right to mention, that sometimes when you are defining something, each party or person might have a concept of it but that when you are legislating, you have to have a clear definition.  The term "interests of justice" was not clear.  Taking note of concerns that were raised to the Committee during the inquiry on victims and witnesses, we were trying to be very clear about the idea of vulnerable witnesses unnecessarily having to give evidence twice, particularly in sexual violence or rape trials and, indeed, perhaps in other trials.  I think that the amendments as laid out by the Minister provide the protection of what we believe is the necessary part of the PE, PI and mixed committals.  We think that they serve a useful purpose and that they are now protected.  However, protections are also built in to ensure that you do not have that two-stage approach to some witnesses.  We are content to support amendment Nos 2 and 3.  Obviously, we accept that, if they are carried, our amendment would fall.  That is fine.
Some of the other amendments have been described as "technical" and, certainly, they add to the work from Consideration Stage and, indeed, to another Bill.  An amendment was tabled to perhaps tighten up the intent of that tabled by Paul Frew at Consideration Stage.  I think that it adds to the intention, which was well laid out and well discussed at Consideration Stage.
Similarly, with regard to the amendment dealing with the Human Trafficking Act, as it is now, given Lord Morrow's intent, I think that he is happy, as the idea of the charities was missing.  This amendment will now, if you like, add to that Bill.  We are certainly more than content to support that.  Similarly, Dolores Kelly articulated what she was trying to do with amendments that she tabled at Consideration Stage.  She accepted that the Minister and the Department could do more work on that.  She obviously feels that the amendments that have been tabled today fulfil her intentions.  We will therefore support them as well.

Roy Beggs: Order.  I wish to advise the House of a development.  I understand that a valid petition of concern has been received in relation to amendment No 7, which is in the second group of amendments.  The debate shall therefore continue on group 1 and will then go on to group 2 in this Further Consideration Stage debate on the Justice Bill.  Decisions will be taken up to and including the Question on amendment No 6.  The vote on the Question on amendment No 7, if moved, will not take place today and will be on a cross-community basis.  The scheduling of the rest of this Further Consideration Stage would then have to be notified to Members in due course.

Alban Maginness: I suppose there is not an awful lot more to be added on this Bill.  I congratulate the Minister on his acceptance of the substance of amendment No 1 and for bringing it to the Assembly.  I think it is a good example of how a Committee can influence and reshape legislation and do so in a very constructive way with the Minister.  I think that he quite properly acted on the advice and concerns that were expressed by the Committee.  I think that congratulations are due to him for reacting in that constructive and very positive way.
Incidentally, it may also inform other pieces of legislation, because other Ministers will, of course, be bringing similar provisions in other Bills.  This Bill could well act as a template for future legislation.
I move on to amendment Nos 2 and 3.  The Minister has accepted the will of the House.  I know that he does not agree with the position adopted by the House in relation to committal proceedings, but he has, quite properly, accepted that position and moved significant amendments, as he described them, in amendment Nos 2 and 3.
He quite rightly said that there was a requirement for textual amendments.  I accept that, but I hope that in putting forward those amendments the Department and Minister are not attempting in some way to blunt the effect of the decision of the Assembly in relation to committal proceedings.  The important issue is the interests of justice test.  That is the abiding rule, or test, for the use of preliminary investigations.  I hope that the amendments that the Minister brought forward will not undermine that in any way.  I ask the Minister to reassure me on that at the conclusion of this part of the debate.
I accept that there is a necessity that the Magistrates' Courts rules be amended, consistent with the position that the Assembly has adopted.  I accept that a written application and a representation should be made to the court where necessary and that a case is established, essentially, that this is in the interests of justice.
However, I would hate to think that in some way the intent of those amendments is to create a situation in which it would be more difficult for a defendant to bring an application in relation to the commencement of a preliminary investigation.  I just seek reassurance from the Minister on that.  That is a proper position for me, as an MLA and a legislator, to adopt.
I also ask the Minister to clarify the position in relation to amendment No 2, which introduces article 29A(5)(b), which states:
"the interests of the persons likely to be witnesses at a preliminary investigation.”."
I presume that the intent of that provision within the amendment is to provide protection for vulnerable witnesses.  I ask the Minister to clarify that and indicate to the House that he has considered that that provides the protection that witnesses would require in circumstances where they may be faced with a preliminary investigation.  I seek an assurance from the Minister on that.
The other aspect that I would like the Minister to clarify relates to amendment No 2 and clause 7(6), which states:
"Where a person is charged with an extra-territorial offence".
Does that mean that the law would not provide, in any circumstances, that a person charged with such an offence would be permitted access to a preliminary investigation?  Will the Minister clarify that position in his summing up of this group of amendments?
I take it that the intent in amendment No 3, which will amend clause 8, is to address the situation in relation to mixed committals.  I want reassurance in relation to that.
Amendment No 4 was tabled by Mr McCartney, Mr Lynch and Mr Hazzard.  I am very sympathetic to that amendment, but I am not certain that it addresses the issue of vulnerable witnesses, in totality anyway.  It certainly would seem to address the situation of a rape victim or the victim of violent sexual assault, but there is a problem with the definition of "violent sexual assault" and what it actually means.  That might be a deficiency in that amendment.
I and my party would be very sympathetic to that amendment, but I am not certain that it provides the necessary cover or protection that the Committee wanted to be afforded to vulnerable witnesses.  I know that Mr McCartney cannot answer those questions, but I make those points by way of constructive criticism.  Having sympathy is insufficient; the Member obviously seeks support.  However, given the fact that amendment Nos 2 and 3 address the protection of witnesses, in those circumstances, it may well be that amendment No 4 is not required in any event, even though, as I said, I am very sympathetic to it.
My colleague Dolores Kelly will address the other amendments in this group, particularly those that deal with domestic violence and protection notices and orders.  We are obviously grateful to the Department and the Minister for tabling those amendments and reflecting the propositions and the needs of vulnerable people in those circumstances and delivering on the assurances that the Minister gave to the House and my party, the SDLP, on the last occasion.  I end my contribution there.

Stewart Dickson: Like others, I welcome the opportunity to speak on the Further Consideration Stage of the Justice Bill as it moves through the Assembly.  The reform of our justice system, which has developed, some might say haphazardly, over many centuries is, of course, not a straightforward task.  We need to commend the Minister for the work that he and his Department have done in maintaining a very steady and clear pace of reform.
Most of the amendments in group 1 are departmental in origin with the exception of amendment No 4, which I will come back to later.  It was mentioned previously that this is a complex piece of legislation and, therefore, it would create a considerable and undue difficulty at the implementation stage were we to tie the Department's hands completely with regard to making alterations to previous statute.
As we know, the Assembly chose to remove clause 86 from the Bill at Consideration Stage because of concerns that it gave too much power to the Department.  I do not share those concerns, but that is where we are.  It was clear that these changes in statute would have to come to the House anyway.  However, to ensure that the Department still has sufficient flexibility, particularly in the area of single jurisdiction, the Minister has brought forward amendment No 1, which I hope has the broad agreement of the Committee for Justice and the House.
Respecting the concerns of the Committee and the Assembly, the Department has clearly restricted the scope of its powers in that area.  In fact, only Part 1 would be affected by a power to make supplementary, incidental or consequential provisions and, of course, that would be with the consent of the Assembly.  The Department and the Committee, of which I am a member, deserve credit for the work that has been done in reaching agreement on these contentious issues.  Going forward, this means that the Department will be provided with at least some remedy in the unlikely event that something has been overlooked in the primary legislative process.
Moving to the proposed amendments with regard to preliminary investigations (PIs) and mixed committals, I am still convinced that preliminary investigations are, in fact, superfluous to a modern justice system.  That has been clearly proven by their abolition in many common law jurisdictions, notably England and Wales.  Evidence, in fact, suggests that these exercises are harmful for victims of crime, especially the most vulnerable people.  For those recounting events it is traumatic and, further, it results in delays to our justice system in holding people to account.  Nonetheless, by a majority, the Assembly has decided to retain preliminary investigations; where this is in the interests of justice it will, in itself, be a difficult term to define.  The Minister's amendment will refine and support the retention of PIs in certain circumstances, including the crucial element of how it will operate in practice.  Safeguards and a robust application procedure to ensure that PIs are only used in exceptional circumstances rather than continuing as the norm must be in place to protect the considered needs of vulnerable witnesses and victims.
I now turn to amendment No 4, which was put forward by Mr McCartney on behalf of Sinn Féin.  The proposed amendment is clearly a compassionate attempt to ameliorate the impact of the retention of preliminary investigations and mixed committals on vulnerable witnesses and victims of crime.  However, it is worth noting that the proposed amendment, as it is attached to clause 8, would only apply to mixed committals, meaning that preliminary investigations would not be affected by the amendment.
Furthermore, the amendment appears to exempt vulnerable witnesses from giving evidence under oath but sets a higher bar for victims, as they must be a victim of rape or sexual assault for the exemption to exist.  I am quite sure that that was not the intention of the proposer; I am sure that he would consider victims of non-sexual violent crime such as intimidation, for example, as potentially vulnerable victims who would and should be generally exempt from recounting their experiences numerous times in front of a court.  It is for that reason that I am not in a position to support amendment No 4.
Personally, I feel that the proper abolition of preliminary investigations and mixed committals is the best that we can do for victims of crime.  Indeed, many of those victims have told us that directly.
The Assembly has decided against that, and I respect that decision.  Nonetheless, to ensure that a robust system is in place, I call on all to support the Minister's amendments today.
Further proposed amendments are departmental.  Again, they refine much of what was added at Consideration Stage.  I commend the Department and MLAs, particularly Mr Frew and Mrs Kelly, for the work that has been done to bring about those developments, particularly on child protection disclosures and domestic violence protection orders.  Those measures will further ensure that the reform of our justice system helps to deliver for everyday people and, crucially, that we have a robust system with preventative measures in place that are accessible to the public and help to keep people safe.  That is what this is about.
I intend to support the amendments in group 1 from the Department.  They refine and support amendments made at Consideration Stage.  Centrally, they get on with the work of reforming our justice system to deliver one that is fit to meet the needs of all our citizens.

Tom Elliott: My apologies for being out for part of the Minister's opening remarks.  I heard quite a bit of them, but I had to leave for some of them.
I will deal with amendment Nos 2 and 3 first, as well as amendment No 4 from Sinn Féin.  Amendment No 4 is positive, in the sense that it is trying to deal with vulnerable witnesses.  I just wonder whether its intention is for the provision to be used solely for those named in the amendment or whether it can be used on a much wider basis.
I am slightly concerned about amendment No 2.  Mr Allister brought forward an amendment at Consideration Stage that received support from the House and was made.  I am concerned that amendment No 2 would slightly weaken Mr Allister's amendment.  I said at Consideration Stage that his amendment was a halfway house between what we had then and what the Minister was bringing forward at that stage.  It appears now that the Minister is creating another halfway house between Mr Allister's amendment from Consideration Stage and what he was proposing in the original Bill.  It is weakening the clause to some extent, but, by and large, it is still getting us to a similar position.
Amendment No 5, which concerns child protection, and amendment Nos 9 and 19 are follow-ups to amendments from Consideration Stage.  Mr Frew's amendment at Consideration Stage was on child protection.  I therefore consider this to be a tidying-up process.  To be fair, amendment Nos 9 and 19, which concern domestic violence, originally came from the SDLP.  The Minister has worked with that party, which I am pleased about, to bring forward positive and comprehensive amendments.  I view that as only being good for the Bill and for society in Northern Ireland.  Hopefully, the amendments will help people who are caught up in domestic violence.  There are a lot of positive aspects to them, but I would like to hear the Minister, in his summing-up, talk about amendment Nos 2 and 3.  I view amendment No 3 as being slightly more wide-ranging than amendment No 4 from Sinn Féin.  Obviously, I have support for both, but I do not see the two being able to sit together.  I am reasonably content with both amendments, but I do want to hear from the Minister when he is summing up.
I am also interested to hear what Mr Allister's thoughts are.  I think that he was described as a traditional barrister or lawyer during the previous debate.  Mr Maginness was lumped in there as well.  I am interested to hear what the traditional lawyer's voice has to say about amendment No 2.  Is it weakening his original idea or complementing it?

Paul Frew: With amendment No 1, I can remember very clearly that, in the House that night, the Justice Minister was very aggrieved and annoyed at the petulance of the Justice Committee in having done this.  I would hate for him to have the powers of Henry VIII because I do not know what would have happened to individual members of the Justice Committee.  However, it goes to show that the Justice Committee takes its role in the scrutiny of legislation very seriously.  There was a principle at stake that we managed to drive home.  That led to the Minister taking it in good grace and then amending —

David Ford: As usual.

Paul Frew: Sorry, Minister?  OK.  I thought that you wanted me to give way.
It is good that the Minister, the officials and the Justice Committee can work together in a good spirit to bring forward amendments that satisfy all of us and the House.
There has been much debate on amendment Nos 2 and 3 from the Justice Minister and the amendment from Sinn Féin's Raymond McCartney, which speaks to that.  We understand the spirit of and the intention behind the amendment.  We understand that the Minister's amendments would go much further and be tighter.  We certainly welcome the spirit of and intention behind those amendments.
That leaves only amendment No 5, which is close and dear to my heart.  I pay tribute to Lord Morrow — he has just stepped out of the Chamber — for his work on the issue to date.  Before I even took the matter on, he had asked questions about it to build up a knowledge base to take it forward.  I also commend the DOJ officials for working with me on getting an agreement and a form of words and the Minister for amending it here today to make it tighter and a much better fit in the Northern Ireland context.  I also commend the staff in the Bill Office for their help throughout the process.  They are a very able and worthy band of people who work quietly behind the scenes and do tremendous work for us all.  We had a session on the subject with DOJ officials in Committee.  They were able to reassure members on the procedural aspects and how it will work in practice, which is very important.
I commend the NSPCC for the work that it did with me.  The NSPCC is part of PPANI.  It is only well and good that the PPANI organisations are the administrators and managers.  They are the experts and the people who manage and monitor.  They are best placed to make decisions on disclosure.  Of course, this was adding to that disclosure scheme.  We already have disclosure in Northern Ireland whereby, if the PPANI organisations deem there to be a risk or threat to a person, they can disclose, so allowing a two-way process.  Anyone who wishes to apply for disclosure will be able to do so.  It is all based on and geared around the protection of a child.  Members recognised that and saw that this could go some way to enhancing that protection.  I pay tribute to the PPANI organisations.  They are the people who do this daily to keep us all safe and reduce the risk to all of us, in particular our children.  We must be cognisant of children.  We must make sure that children, given that they are vulnerable, are placed in the safest place possible at any given stage of their lives.
I also pay tribute to Dolores Kelly and the SDLP for the amendments that they had brought forward but have withdrawn in the knowledge that they will come before us again.
I certainly will have no hesitation in supporting them.  I recognise the spirit in which they were tabled and understand exactly what they would have done.  They were also intended to enhance the protection of vulnerable people, which must be commended to the House.
I will end there, but, again, I thank everyone for supporting my amendment at Consideration Stage and, hopefully, supporting this amendment at Further Consideration Stage so that it can be enacted in law.

Dolores Kelly: I am delighted to be able to speak to the amendments to clause 19.  As others have said, the Minister has delivered on his commitment to our party by tabling amendments on the domestic violence protection notices (DVPNs) and the domestic violence protection orders (DVPOs), which are, as other Members said, designed better to protect victims of domestic violence.  I thank all Members for their support and comments.  As Mr Frew said, the Minister acknowledged the disclosure scheme by giving a commitment for wider consultation later in the summer or in the autumn.  I look forward to that.  As a party, we will certainly respond to that consultation, and I urge all Members to have their say.
What has been particularly exciting about the Justice Bill is the first group of amendments because they are primarily designed to afford better protection to victims of crime and, indeed, witnesses of crime.  I commend Members who tabled amendments with that spirit and intent, today and at Consideration Stage.
As an Assembly and Executive, we will need to work in a much more collaborative way on resourcing better counselling services and better investment in refuges etc for victims of domestic violence, but that is, perhaps, a debate for another day.
Having spoken to some of the organisations and victims of domestic violence, I know that they are heartened by the way in which parties have approached this most sensitive of matters and by the party support for the principles behind these amendments.
I will not delay the House as I know that there is, potentially, a long evening ahead of us.  I place on record my thanks to my policy staff, colleagues, the staff in the Bill Office — primarily Aoibhinn, once again — and the Minister.  I ask the Minister to convey my thanks to his colleagues in the Department of Justice for working so closely with us in ensuring that the amendments meet the principle and the spirit that I had hoped they would contain when I first tabled them.  I thank you all for that.

Jim Allister: I apologise at the outset that I was not here during the Minister's speech.  I had to attend another event within the precincts.
I want to speak primarily to amendment Nos 2 and 3.  It is patently clear to me that the Minister has sought to dilute, as close to the limit that he can, the amendment on PIs and mixed committals that I tabled and the House accepted.  The Minister and his Department, having concealed the actual wording from the Committee, and not delivering it, I understand, until after the deadline for amendments had passed, likewise concealed it from me in that sense.  I would have thought it not unreasonable, in the period between Consideration Stage and the tabling of amendments, for the Minister's officials to have at least liaised with me and advised me of the intended road of travel.  However, it is quite clear that they did not wish to do that and that they wished to spring upon the House, after the closure of Further Consideration Stage amendments, their amendment as the sole amendment that the House effectively could consider.  I think that that is a message that speaks to the departmental intent in itself.
Coming to the content of the amendment, I say that it dilutes — it certainly does — but it does more than that.  It seeks to raise hurdles and hoops to make it quite prohibitive to attain that which the House approved:  the retention of a PI or a mixed committal if that was in the interests of justice.  It does that in a number of ways.  It does it first by the very wide ambit of requiring:
"an application to set out grounds",
imposing a layer of bureaucracy that really is not necessary for these things, and to prescribe that the grounds — which this House has not seen and will not see at a point where it can change them — must:
"contain such other information as may be prescribed".
That is the import of paragraph 3(a).  So, the Department is holding to itself the capacity in the magistrates' rules to set the bar as high as it can in order, in the rather telltale words of Mr Dickson of the Alliance Party, to ensure that a PI is only ever held in exceptional circumstances.  The will of this House was that a PI would be held when it was necessary in the interests of justice.  The purport of this amendment is to make sure that it can only ever be held in exceptional circumstances.  And so the hurdles and hoops required to be passed through are made as wide as they can.
Then we come to some amazing language in paragraph 4:
"The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice."
This is meant to be a piece of legislation; it is not a speech.  The language "if (and only if)" is totally foreign to a legislative format.  It is the tautology and emphasis that you would expect in a speech, but it is not the language of legislation.  This legislation would have the same legal effect if it said, "may direct the holding of a preliminary investigation if the court is satisfied that a PI is required in the interests of justice", but to use language like "if (and only if)", what does that mean?  What is the relevance of that to a clause in legislation?
"If (and only if)" might be relevant, as I say, to a speech; it is certainly not relevant to legislation.  It is a very poor reflection, I think, on whoever drafted it, to think for one minute that that was appropriate to put in legislation.  Of course, what it is trying to do is set the barrier as high as it can to intimidate a magistrate with language like "if (and only if)" then can you allow a preliminary investigation.
It goes on, in paragraph 5, to say:
"In determining an application under paragraph (2) the court shall in particular have regard to—
(a) the nature of the offence ... ;
(b) the interests of the persons likely to be witnesses"
That is in the context in which the principle is that you have a PI if it is in the interests of justice.
Now we move to language that the court shall "in particular" have regard to these other matters.  The import seems to be, "Let us deploy this as a mechanism to trump the interests of justice by emphasising that the court shall 'in particular' have regard to these matters".  Where was the problem in saying, "the court shall have regard to" the nature of the offences or the interests of the persons likely to be witnesses?  Again, there is this unnecessary gilding of the lily —  "if (and only if)" and "in particular" — to drive home the point to a magistrate, "Well dare you give a preliminary investigation".  Never mind that the proper test is in the interests of justice:  this is the new test that the Minister wants to set.
The Minister has gone too far in his amendment in that regard, and he has gone too far in seeking to defy the considered wishes of the House at Consideration Stage.  As I said at Consideration Stage, I have no difficulty with the amendment being tidied up, with it being amplified, or with making things clearer than in the few short clauses that were already there.  I have no difficulty with that, but I take considerable exception to the concerted effort to dilute and change in this radical fashion that which the House had approved.  The same applies in amendment No 3, because it too resorts to "if (and only if)" and "in particular" to do the same thing.
Turning to amendment No 4, tabled by Sinn Féin.  I understand the thrust of it, but my difficulty with amendment No 4 is with the last clause where it talks about:
"a victim of rape or a violent sexual assault".
The problem there is that during the trial process — indeed, in the pre-trial process — you cannot assume, and therefore cannot talk about, "a victim".  No crime has yet been proven in the process.  Therefore, I would have thought that the amendment should have talked about "a complainant" in a rape case, or "a complainant" in a violent sexual assault.  Those are the people that could be covered by this.  There are some legal difficulties in shaping the amendment by expressly defining individuals as victims at a point before there has been a conviction of anyone.  I understand what is intended, but it rather puts the cart before the horse.  The language needs to refer to complainants.
Amendment No 18 purports to amend schedule 1 to change the fact that it says:
"A magistrates' court has jurisdiction ... to conduct a preliminary inquiry into any indictable offence",
to say that a magistrates' court has jurisdiction to conduct a preliminary inquiry "or a preliminary investigation".
That is fine, but I am surprised that it does not go on to say, "or a mixed committal".  We have three categories of disposal in the return for trial process.  We have the preliminary investigation, a preliminary inquiry or a mixed committal.  That is the infrastructure of the Magistrates' Courts Order and all things attendant upon it. I am surprised that, when it came to amending the schedule, it did not say, "PI, PE or mixed committal".  I really think it needed to say that, but I will be interested to hear from the Minister why it does not.  Maybe there is some reason for it that escapes me for now.

David Ford: Until the last contribution, I was beginning to think that there was going to be universal praise for everybody in sight.  Before I criticise some aspects of what Members said, perhaps I should start off by praising the Committee and thanking its staff, my officials, legislative counsel, the Bill Office and the Members who have contributed and made specific comments. To disrupt that happy mood and given that there was such general agreement until the last contribution, I will go through some of the points that Members raised.
I have to disagree slightly with Mr Ross in the spirit of maintaining the fact that we do not entirely agree on the abolition of clause 86.  He graciously acknowledged, as did others, the work that has been done to deal with that, but I think that there are real issues around legislation.  The fact that similar provisions to those in the original clause 86 have been included in a significant number of Bills that have been before the House and have been mostly allowed through without any question suggests that there are reasons why that is done.  They are not reasons of laziness.  The fact that we now have 34 pages of legislation being amended in schedule 1 alone is an indication of the detail that has to be gone into.
It is also slightly ironic that, if we had not had the Bill before the House at this stage, it would have been necessary to amend the provisions of the human trafficking Act in respect of charities through a procedure in that Act that was passed by the House without any dissent or disagreement.  That would have been necessary to make the provisions on charities, had we not had this Bill before the House at the appropriate time. There were reasons why it was done. It was not done out of laziness, and we need to be careful that we do not throw out proverbial babies with proverbial bathwater in that respect.
As I said, I recognise that we have had a constructive discussion, including direct engagement with the Committee on how we deal with that, with particular reference to Part 1 and the vast amount of legislation going back to 1842 that had to be amended because of the single jurisdiction issue. We have seen a lot of positive work done on that, so, whilst I will happily agree with the Chair that we perhaps need to look at the necessity of provisions like amendment No 1 and the previous clause 86, I do not think that we should automatically assume that we can do without it in all circumstances.  I also thank the Chair for his recognition of the positive work that is being done on disclosure issues relating to adults and children, including the briefing that my officials and the police gave to the Committee last week.  I think that it shows progress in that respect.
Mr Ross also asked about international charities and their potential role.  The amendment on the specification of charities makes it clear that we are talking about charities that are registered under the laws of England and Wales, Scotland or Northern Ireland.  I am not quite sure whether there are international charities operating in any part of the UK that are not registered in any part of the UK, but, as the law stands and as the amendment stands, they would not be permitted to carry out functions under the human trafficking legislation unless they are international charities that are registered in one or other of the UK jurisdictions.
Mr McCartney made similar points as vice-Chair — as he frequently does in backing up the Chair, especially when there is some modest criticism going on of the Minister — around clause 86, so I shall not repeat them.  I liked his reference to his amendment around committals being "well intentioned but ill defined" and the grace with which he accepted that possibly my amendment was equally well intentioned but slightly better defined.  It is an indication that we can do constructive work with many people in the House across a variety of issues.  I trust that that has been recognised and that we are able to deal with the issue in a better way.
Alban Maginness again got in the point about amendment No 1 and congratulated the Minister for accepting the will of the House.  I mouthed "as usual" across the Chamber to Paul Frew but did not make a formal intervention because I am well aware of the role of the Committee, which, I believe, still stands in the 1998 Act as being to advise and assist the Minister.  Even if its advice is not always requested and its assistance is not always forthcoming, the general principle applies between the Justice Committee, departmental officials and, I trust, the Minister that there is still a fairly cooperative arrangement given the difficult issues we have to deal with.  Even if we all have our tongue slightly in our cheek, I welcome the fact that it was a genuine comment from Mr Maginness about the work that was being done.
Mr Maginness hoped — his fellow member of "Traditional Lawyer's Voice" went a little further later on — that the intentions of the amendment were not to blunt the will of the House.  That was absolutely not the intention of the amendments.  However, a number of Members pointed out issues around the exact impact of the interests of justice on victims.  Indeed, I could embarrass him by quoting what the vice-Chair of the Committee, Raymond McCartney, said at Consideration Stage:
"What we are looking to see ... is ... it being up to someone to convince the magistrate that it was in the interests of justice for"
a witness
"to be called, rather than the reverse." [Official Report, Vol 105, No 3, p16, col 1].
That is an indication not of backpedalling on the concept of the interests of justice but of ensuring that, in taking account of the interests of justice, we take account of the interests of those who may be required to give evidence, particularly vulnerable victims and witnesses who might be required to give evidence twice if there were a preliminary investigation but who do not need to do so in the interests of justice.  By the fact that we balance the nature of the charge and the interests of victims and witnesses, I believe that this is the right balance between the two, not in an attempt to blunt — I think I have a fairly clear record of accepting the will of the House, including, frequently, when I disagree with it slightly — but to ensure that we put matters into practical sense to ensure that we move things forward as to how things can go ahead. I think that we have shown that the amendment, which was very largely encouraged by a number of Members of the House who recognised the difficulties that there were, would be able to deal with this in a way that is realistic, proportionate and practical.  I trust that this will show that we can move forward around this area in a way that protects the most vulnerable.
Mr Maginness asked specifically about the provisions for extraterritorial cases.  It is my understanding that, at this stage, the defendant does not have the right to object to a preliminary inquiry in those cases and this is merely a replication because of slight changes in the wording of the already extant provision; it is not any change in it. He also asked about whether the references in clause 8 are to a mixed committal.  They are, in fact, references to a mixed committal on the basis that they are matters where some people are required to give evidence at what is a preliminary inquiry.  That is a mixed committal in practical terms, so it covers the particular issues raised there.
Mr Dickson, of course, joined in the usual roll call of those praising the Minister.  I am grateful to him, and it would be slightly worrying if I did not have one person sitting behind me who was positive and constructive.  He made the interesting point that preliminary investigations had been abolished elsewhere in other common-law jurisdictions.  He highlighted England and Wales, and it is also the case that they have been abolished entirely in the Republic of Ireland.  We are not seeking to abolish; we are seeking to ensure that they are used where appropriate in the interests of justice, and the interests of justice include the needs of victims.
So there are positive changes within that.  We established that we have got that right by looking at the balance of the first round of speakers.
Mr Elliott referred, in the context of the committal proceedings, to having thought that Jim Allister's previous amendments were a kind of halfway house and that, to some extent, I was dragging matters halfway back again.  I am sorry but I do not recognise that as being the position.  Indeed, I know that there are those who are even better acquainted with the courts than me or, perhaps, Mr Maginness or Mr Elliott who believe that, as I said at Consideration Stage, the practical effects of the amendments put forward by Mr Allister would be virtually no change.
I think that the wish of the House to deal with the needs of victims has been fully covered by these amendments, and the comments around the House have largely reflected that.  It is not a matter of taking a halfway house and pulling it back.  The amendments tabled and passed at Consideration Stage would have meant virtually no difference in practice.  In accordance with the remarks of many Members around the House, it is about the need to ensure that those vulnerable people who might be required to give evidence were suitably protected.

Tom Elliott: I thank the Minister for giving way.  It is merely a query around amendment Nos 2 and 3.  Is amendment No 2 necessary when you have amendment No 3, which deals with the evidence on oath, which is around vulnerable victims or vulnerable complainants, as Mr Allister highlighted?  I just wonder whether it is necessary to have amendment No 2 if you have amendment No 3.

David Ford: The answer is straightforward and simple.  We need amendment Nos 2 and 3 because we have clause 7 and clause 8 in the Bill, which deal with different issues and both are required to be covered in the amendments.  They are similar issues but they are different issues.  Therefore, we have to ensure that we get things covered carefully in that respect.
Mr Frew suggested that the Minister sounded a bit annoyed, and he somehow managed to equate me to Henry VIII, which is deeply worrying since, not that long ago, I was told that I was not as bad as Henry VIII.  So, I will go with the remarks made about me at Consideration Stage and ignore Mr Frew in that respect.  However, I think that it is an issue where we have shown that the Department and this Minister do not always agree with everything that comes from the Committee.  I am entitled to disagree on the basis of information that I have before me, but I am also required to take account of the views of the House and to seek to work constructively with the Committee.  So, if Mr Frew thought that I was about to behead him or throw him in the tower—
[Laughter.]
— I can assure him that I have no such powers, and, if I had them, I would not use them against him when he is working constructively with me.  There are practical issues where, frankly, we disagree at times, even though a lot of what we do is positive, constructive and engaging.
Mr Frew then went on to praise everybody, including, most notably, Lord Morrow for his role as he worked on the disclosure issues.  I will happily register a slight smile at Mr Frew's allegations about me and pass on and continue to be constructive.  I noticed that he made one very significant point about the disclosure issues, which is that those are building on the existing PPANI arrangements.  That is the key factor; not that we are upsetting the provisions that we have, not that we are dealing with major radical change, but that we are building on good work already being done by the police, probation and other agencies within PPANI and refining it that little bit to make it that little bit better.  When we talk about promoting this, we should not suggest that there were not good arrangements in place previously, because I think that that would be doing a disservice to many dedicated public officials who have worked extremely hard over the years on the PPANI arrangements, and I appreciate the fact that Mr Frew is, again, nodding in response to something that I said, even if he laughs at Henry VIII references.
I am also grateful for the fact that Mrs Kelly commented that she believed that the Minister had delivered on his commitments in the Bill and in the forthcoming consultation.  I think that recognises the practical reality of the cooperation.  She and her colleagues bear a part of that practical cooperation for the work that they have done.  It was also very significant when, in the penultimate contribution of the debate before my final winding-up speech, Mrs Kelly said that this group of amendments is about the protection of victims and witnesses.  I believe that that is the case in every aspect of what we are looking at, whether we are looking at committal reform or the specific issues around disclosure.  There is a lot in this that is about ensuring that people are better protected and better looked after across the justice system generally.  We should be grateful for that, as we look at issues like domestic violence, protection orders and protection notices, as we look at disclosure and as we look at the way in which committal is run.  It is about protecting victims and witnesses, which has been a key aim of the Committee since justice powers were devolved.  On that issue, there has been good partnership, which is absolutely correct.
In the final contribution, Mr Allister ensured that all was not sweetness, light and harmony in the Chamber.  First of all, he admitted that he was not here to hear my opening contribution.  It is slightly difficult when you do not know exactly what was said in the opening remarks.  When he said that it was clear to him that the Minister wished to dilute the will of the House, he contradicted every other Member of this House who has recognised that there has been good and close working partnership between Members of the House, particularly members of the Justice Committee, and the Department, whether it is the officials or the Minister.  That was absolutely not the case.  The case was to take account of what was said at Consideration Stage and ensure that we put things right.
I was accused of springing an amendment on the House by someone who produced an idea without any discussion with anybody that, on advice from legislative counsel, did not sit easily with existing legislation.  He produced that without notice at Consideration Stage and then he accused me of, in my response, springing something on the House.  It was absolutely clear, from the discussion at Consideration Stage and with the Committee afterwards, that there was a will to make amendments to the amendments that were provided on the issue of committal.  If I am asked to choose between taking advice on what is proper drafting from legislative counsel or from Mr Allister, I will choose the advice of legislative counsel.  If I am asked about what the effects will be on the court, I will take advice from those who have specific experience of how it runs.
What we have put forward in the first group of amendments is a reasonable and workable programme that will ensure that the changes that were made at Consideration Stage are made better, that we deal with the specific issue of the charity recognition to ensure that we can better protect the victims of human trafficking, and that everything else we are doing is designed to improve our overall commitment to improving services for victims and witnesses across the justice system.  With the exception of Mr McCartney's gracious recognition of the difference between amendment No 3 and amendment No 4, I commend all the other amendments to the House.
Amendment No 1 agreed to.
Clause 7 (Preliminary investigations)
Amendment No 2 made:
In page 5, leave out lines 7 to 12 and insert&quot;7.—(1) The Magistrates’ Courts (Northern Ireland) Order 1981 is amended as set out in subsections (2) to (5).(2) After Article 29 insert?—‘Committal proceedings for indictable offences29A.—(1) Committal proceedings in a magistrates’ court in relation to an indictable offence are to be conducted?—	(a)	in a case where the court directs under this Article that a preliminary investigation is to be held, by way of a preliminary investigation;	(b)	in all other cases, by way of a preliminary inquiry.(2) An accused may apply to the court for a direction that a preliminary investigation is to be held.(3) Magistrates’ court rules may make provision in relation to an application under paragraph (2), including provision?—	(a)	for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;	(b)	requiring an application to be made before a prescribed time;	(c)	for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).(4) The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice.(5) In determining an application under paragraph (2) the court shall in particular have regard to?—	(a)	the nature of the offence or offences charged;	(b)	the interests of the persons likely to be witnesses at a preliminary investigation.”.(3) In Article 30 (preliminary investigation) for paragraph (1) substitute?—“(1) This Article applies where committal proceedings are conducted by way of a preliminary investigation following a direction under Article 29A.”.(4) Omit Article 31 (preliminary inquiry at request of prosecution).(5) In Article 32 (preliminary inquiry: service of documents)?—	(a)	in paragraph (1) for the words from the beginning to the end of sub-paragraph (a) substitute?—“(1) A reasonable time before the day fixed for the conduct of committal proceedings, the prosecution shall?—	(a)	provide the clerk of petty sessions with copies of the documents mentioned in sub-paragraph (b); and”;	(b)	in paragraph (1)(b) omit?—	(i)	the words “a copy of that notice together with”; and	(ii)	the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;	(c)	omit paragraph (3).(6) In section 4 of the Criminal Jurisdiction Act 1975 (trial of extra-territorial offences) for subsection (3) substitute?—“(3) Where a person is charged with an extra-territorial offence so much of Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981 as affords to the accused a right to apply for a direction that a preliminary investigation is to be held shall not apply, and the procedure shall be by way of preliminary inquiry under that Order, and not by way of preliminary investigation.”.(7) Section 3 of the Justice and Security (Northern Ireland) Act 2007 (committal proceedings for trial without a jury) is repealed.&quot;. — [Mr Ford (The Minister of Justice).]Clause 8 (Mixed committals: evidence on oath at preliminary inquiry)
Amendment No 3 made:
In page 5, leave out lines 14 to 16 and insert&quot;8.—(1) Article 34 of the Magistrates’ Courts (Northern Ireland) Order 1981 (giving of evidence on oath at preliminary inquiry) is amended as follows.(2) After paragraph (1) insert?—“(1A) The prosecution or the accused may apply to the court for leave to require a person to attend and give evidence on oath in accordance with paragraph (2).(1B) Magistrates’ court rules may make provision in relation to an application under paragraph (1A), including provision?—	(a)	for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;	(b)	requiring an application to be made before a prescribed time;	(c)	for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).(1C) The court, after considering the application and any representations made to the court, may give leave to the applicant if (and only if) the court is satisfied that the interests of justice require it.(1D) In determining an application under paragraph (1A) the court shall in particular have regard to?—	(a)	the nature of the offence or offences charged;	(b)	the interests of the persons likely to be required to give evidence at the preliminary inquiry.(1E) Where leave is granted to one party under paragraph (1C), the court may (without any application) grant leave to the other party to require a person to attend and give evidence on oath in accordance with paragraph (2).”.(3) In paragraph (2) for the words from the beginning to “may each require” substitute “The court (of its own motion), the prosecution (if granted leave under paragraph (1C) or (1E)) and the accused (if granted such leave) may each require”.&quot;. — [Mr Ford (The Minister of Justice).]

Roy Beggs: I will not call amendment No 4 as it is mutually exclusive with amendment No 3, which has been made.
Clause 48 (Child protection disclosures)
Amendment No 5 made:
In page 35, line 1, leave out subsections (2) to (4) and insert&quot;(2) In Article 49 (1) (interpretation of Part 3)?—	(a)	after the definition of “agencies” insert?—“ “child” means a person under the age of 18;“conviction” includes?—	(i)	a conviction by or before a court outside Northern Ireland;	(ii)	any finding (other than a finding linked with a finding of insanity) in any criminal proceedings that a person has committed an offence or done the act or made the omission charged;	(iii)	a caution given to a person in respect of an offence which, at the time when the caution was given, the person has admitted;”;	(b)	after the definition of “specified” insert?—“ “relevant previous conviction”, in relation to a person, means a conviction for a sexual or violent offence by reason of which the person falls within a specified description of persons;”.(3) In Article 50 (guidance to agencies on assessing and managing certain risks to the public) after paragraph (2) insert?—“(2A) Guidance under this Article must contain provisions about arrangements for considering the disclosure, to any particular member of the public, of information concerning any relevant previous convictions of a person where it is necessary to protect a particular child or particular children from serious harm caused by that person; and the guidance may, in particular, contain provisions for the purpose of preventing a member of the public from disclosing that information to any other person.”.(4) In Article 50(3) for “Paragraph (2) does” substitute “Paragraphs (2) and (2A) do”.&quot;. — [Mr Ford (The Minister of Justice).]New Clause

Roy Beggs: We now come to the second group of amendments for debate.  With amendment No 6, it will be convenient to debate amendment No 7.  Members will also note that a valid petition of concern has been received this afternoon to amendment No 7, so the vote on that amendment will not be taken today and will require cross-community support.
We will continue with the Further Consideration Stage of the Justice Bill up to and including the Question on amendment No 6.  I will then ask whether amendment No 7 is to be moved.  If amendment No 7 is moved, we will be unable to proceed beyond that point today.  If that is clear, we will proceed.

Alastair Ross: I beg to move amendment 6:
After clause 81 insert&quot;Unpaid community service after early release81A. In Article 19 of the Criminal Justice (Northern Ireland) Order 2008 after paragraph (1) insert —“(1A) The Department may by regulations, having consulted the Probation Board, provide for a community service scheme, under which a person released under paragraph (1) may be required to engage in unpaid community service for the remaining period of the fixed term they would have served but for their early release.”.&quot;.The following amendment stood on the Marshalled List:
No 7:  After clause 89 insert&quot;Sentencing for violent offences against older people89A.—(1) This section applies where an individual is convicted of a violent offence and that individual was aged 18 or over when the offence was committed.(2) The court shall impose a custodial sentence for a term of at least seven years (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.(3) For the purposes of this section “violent offence” means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).(4) If there are exceptional circumstances which justify?—	(a)	the imposition of a lesser sentence than that provided for under subsection (2), or	(b)	the exercise by the court of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968,the court shall state in open court that it is of the opinion that such exceptional circumstances exist and the reasons for that opinion.(5) Where subsection (4) applies the Chief Clerk shall record both the opinion of the court that exceptional circumstances exist and the reasons stated in open court which justify either the imposition of a lesser sentence or the exercise of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 as the case may be.(6) For the purposes of subsection (2) “custodial sentence” shall not include a sentence in relation to which the court has made an order under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968.(7) For the avoidance of doubt, an offence falling within the definition of subsection (3) is a violent offence for the purposes of this section whether or not there is evidence that any individual who is convicted of such an offence knew or suspected that any person who dies or sustains physical injury, or any person who is intended or likely to die or sustain physical injury, is aged 65 years or more.(8) In section 36 (reviews of sentencing) of the Criminal Justice Act 1988 in subsection (9)(d) after “2015” insert the words?—“and a sentence required to be imposed by virtue of section 89A of the Justice Bill 2015”.&quot;. — [Mr Poots.]

Alastair Ross: I noticed that Mrs Kelly spoke about how excited she was about the first group of amendments.  Given that she is not here now, perhaps she does not find the second group quite as exciting.  Perhaps she will make an appearance later on.
I will speak to amendment No 6 in my name and make some general comments on amendment No 7, which stands in the name of my colleagues Mr Poots and Mr Givan.  As the Committee will know, since taking up post, I have been keen to examine how we can take a more innovative approach to justice, making the criminal justice system in Northern Ireland quicker, fairer and more accessible and, ultimately, one that makes us safer by protecting the public and rehabilitating criminals.
As I have said many times before, just as the global downturn forced private-sector organisations to improve their levels of efficiency and look at doing things differently to ensure that outcomes improve, so too should government and the public sector use the environment of public-spending reductions as a springboard for reform and innovative approaches to policy.  I am keen to look at how we can deliver better outcomes in justice through being more cost-effective, ensuring that rehabilitation reduces the chance of reoffending and ensuring that victims and the general public are content that offenders are punished appropriately for the crimes that they commit.
By way of background to my amendment, on 28 May, at my request, Department of Justice officials briefed the Committee on the commencement of articles 19, 20, 26 and 30 of the Criminal Justice (Northern Ireland) Order 2008.  That followed similar briefings received by the Committee back in February and May of 2012, at which Committee members considered the consequences of commencing the named articles.
Article 19 provides the Department with a wide-ranging discretionary power to release prisoners early if it were so minded, without the need for any recourse to the Assembly or the Justice Committee.  I think that it is prudent to establish that the bar is set very high for those prisoners who would meet the criteria and that any prisoner who is in any way a risk to society will not be eligible.  That includes perpetrators of serious crimes such as violent or sexual offenders; those with terrorist convictions or who are in prison for an extended custodial sentence; a prisoner who is subject to a hospital order or a transfer direction under the Mental Health Order 1986; a prisoner who is liable for removal from the United Kingdom; or a prisoner who has been released on licence under the article and recalled subsequently during the currency of the sentence.  However, if we are of the belief that prison serves the dual role of punishment and rehabilitation, we should recognise that, in limited circumstances, the Department may consider it appropriate to provide for a conditional early release of a prisoner.  Whilst it is unlikely that the types of offences that we are envisaging under the scheme will have resulted in any direct victims as such, if the offender committed a crime in which there was an individual victim, that victim should be fully informed and, indeed, be part of the process.
Articles 26 and 30 of the order are commenced at the same time as article 19 and provide for individuals to be subject to a curfew and recall during the early release period.  Although the current law allows for prisoners who are deemed to be low risk, with excellent behaviour while in prison, to apply for early release, the way in which the order is currently drafted means that, although attendance at AA or anger management meetings can be applied, the Prison Service, the Department of Justice or the Probation Board cannot, as part of the early release scheme, compel individuals to see out the remainder of their sentence in a community service scheme or unpaid work programme.  Although I am personally open to the idea of looking at alternatives to custodial sentences for low-level first-time offenders, I also believe that, if individuals are sentenced to a particular length of time, they should serve out that period.
I therefore offer amendment No 6 to the House in the hope that it does two things.  First, I hope that it will ensure that those who are sentenced to a period in which they lose their liberty see out that sentence but, secondly, that it will allow for the end of their sentence to be in the form of a community service, with a graduated return to normal life.  That not only ensures that those successful in getting conditional early release must still pay back their debt to society in a more meaningful way but transitions them into normal life and work and, importantly, ensures that the taxpayer does not have to keep them in prison unnecessarily.
Conditional early release is not in itself a novel concept and is utilised in the rest of the United Kingdom and, indeed, in the Irish Republic.  In fact, the model that I propose is similar to that operating in the Irish Republic.  Officials here have already indicated that they and the Probation Board are keen to examine the possibility of introducing the scheme to Northern Ireland.
The Irish Republic's scheme came about following the report of the Thornton Hall project review group in July 2011.  That report, amongst other things, noted the powers of the Irish Government to release a prisoner early to reintegrate that prisoner into society and suggested that, as a positive step, the Justice Minister should introduce a form of earned temporary release with a requirement for community service to prepare prisoners for release on completion of their sentences.  The introduction of community service orders, therefore, required an offender to perform an activity in the community, such as unpaid work, which allows offenders to repay their debt to society and to pursue reform, rehabilitation or reparation in the community.
Evidence suggests that this is a successful programme that reduces reoffending rates and is a more cost-effective way to rehabilitate offenders.  Whilst reducing the prison population should not be the primary motivation, there could be modest cost savings from the scheme.  I appeal to the House to support amendment No 6 to ensure public confidence in the requirement for prisoners who are eligible for early release to see out their sentence in the form of community service and to help to transition low-risk offenders into the general population.

Tom Elliott: I thank the Member for giving way.  I just have a query.  He has put forward a very interesting amendment.  Has he had any discussions with the Probation Board or any of the other criminal justice agencies about the proposal?  It would be interesting to hear what they have to say.

Alastair Ross: There have been two levels of contact.  First, in Committee, when officials briefed the Committee, and I raised the issue with them directly — they said that they were interested and were certainly supportive of a move towards a scheme similar to that in the Irish Republic — and, secondly, informally, through discussions that I have had with members of the Probation Board, who also support it.  The Minister is also generally supportive, although it would take time to work out some of the detail.  Those whom I have spoken to about this scheme have been very supportive.
I turn to amendment No 7, in the names of my colleagues, which deals with violent offences against older people.  I am aware that a petition of concern has been lodged against this.  I am sure that all of us, at some stage in our work, have had to visit elderly constituents who have been attacked in their home or robbed on the street close to their home.  Indeed, I recall visiting one elderly woman in Monkstown who had been mugged for only a few pounds and a gold necklace and was terrified to leave her home in case she was attacked again.  The public are quite rightly outraged at this type of attack against vulnerable members of our community and want action taken against those who perpetrate such despicable acts.  This undoubtedly motivated the two Members to bring forward their amendment.
I believe that violent offences should carry a heavy sentence, and anyone who attacks people incapable of defending themselves deserves to be put behind bars for a significant period.  It is clear that, as public representatives, we have a responsibility to act on behalf of the wider community, and I have no doubt that most members of the public will support the motivation behind this amendment.  However, I also respect the separation of powers, which respects the independence of the judiciary when determining appropriate sentences, and, for that reason, I am always cautious of the imposition of mandatory minimum sentences by a legislature.
This amendment, however, in many ways, seeks to find a middle ground between the expectations of the public and the independence of the judiciary.  Most Members should at least acknowledge that this evening.  Clause 89A(2) provides the discretion for the courts that I believe is fundamental to ensuring that justice is served.  It states:
"The court shall impose a custodial sentence for a term of at least seven years ... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."
That discretion means that a judge can take into consideration the personal circumstances of the alleged offender when handing down a sentence.  In circumstances in which a person was abused by someone now over the age of 65, whom he confronts, leading to a physical alteration, the context of the altercation is fully taken into consideration.
I know that Members who tabled a petition of concern this evening will argue either that they are opposed to mandatory minimum sentences in principle or that they believe that seven years is too high, but I would have thought that they would at least acknowledge that Mr Poots and Mr Givan, in the wording of their amendment, have addressed the unintended consequences that could flow from the —

Basil McCrea: Will the Member give way?

Alastair Ross: Yes.

Basil McCrea: I am interested in the argument that the Member has put forward, but the amendment, with so many caveats in it, seems to be meaningless, in that there are so many exceptions.  If he supports the amendment, can he tell us why and what difference it will actually make?

Alastair Ross: What is clear from the amendment is that it is almost like a starting point.  The legislation on minimum sentences, including that in Great Britain, has a starting point.  It is the legislature saying that, because of the type of offence that we are talking about, there is a public concern, and this is a sentence that the legislature thinks appropriate.  However, I also firmly believe that there needs to be discretion for the judiciary to allow for certain circumstances, and that is the point that I made.  For Members concerned about a minimum sentence, I think that the inclusion in the amendment of discretion for the courts is a responsible one that should ease concerns that there would not be such discretion.
A clear message is being sent out that we take attacks against the elderly very seriously.  It makes sure that there is some comfort for  elderly members of the community who are very nervous about being attacked in their own home, and it sends out a strong message to those who would target the vulnerable that those issues are taken very seriously.  It provides a framework for the judiciary as well.  However, as I said, there is a petition of concern on it.  That is unfortunate, but we will listen with interest to the contributions from Members explaining why they are opposed to it.

Jim Allister: Will the Member give way?

Alastair Ross: I will give way.  I was just about to sit down.

Jim Allister: The amendment is not clear on whether it is supposed to apply to all courts, whether it is just the Crown Court or whether it is also the district courts.  Could that be clarified?

Alastair Ross: It is my understanding that the district court would not be able to deal with these issues, so that would not be appropriate, but, as I said, the amendment is not in my name.  Perhaps the individuals who tabled the amendment will wish to elaborate on that for Mr Allister.  I have made general comments on it from my point of view, but I suspect that Mr Poots will address that in more detail when he moves the amendment in his name.

Raymond McCartney: Go raibh maith agat, a LeasCheann Comhairle.  I will speak first on amendment No 6, which is tabled in the name of Alastair Ross, and we will support it.  I think that, in outlining the reasons why he brought the amendment to the debate today, he put it in context.  The Department briefed the Committee on a number of occasions about a procedure that it will use to release prisoners early from their sentence.  The Chair, Alastair Ross, spoke about the bar being set and how it will be done to ensure that the people who are released early pose absolutely no risk to the public.  Rightly, he identified a gap:  whereas other stipulations can be put on a prisoner on release, there was a gap in relation to community service.  I think that this was an appropriate mechanism to address that.
The wording of the amendment allows a degree of latitude for the Prison Service and the Probation Board so that it does not become a stipulation.  That is in case there are other things that prisoners might do on release.  They might take up full-time employment, and community service, if not a hindrance, might certainly reduce their prospects of that.  What it is designed to do, in much the same way as if someone was given a sentence that included a probation order, is give rise to conditions that will assist that.  In that context, we will support it.
We will oppose amendment No 7, tabled in the name of Paul Givan and Edwin Poots.
Further Consideration Stage is not the appropriate time to bring this type of new clause in front of the Assembly, given the breadth and depth of it and perhaps the discussion that is needed on it.  Attacks on older people and how they are treated by the justice system are something worth discussing, certainly worth highlighting and therefore definitely worth campaigning for.  However, my party's opinion is that the remit and intent of the clause is such that it would require the full scrutiny process of the Assembly to ensure that we do the right thing with regard to any legislative process.

Paul Givan: Will the Member give way?

Raymond McCartney: I will indeed, yes.

Paul Givan: Will the Member concede that this is the very same point that he made about an amendment on the regulation of private abortion clinics and that when we did that, the Members opposite issued a petition of concern?  Sometimes, it does not really matter what we are going to do:  if you are opposed in principle, you will use these arguments, but they are not actually substantive.

Raymond McCartney: During the recent debate, we said that the approach taken was the principle of full scrutiny, but we also outlined reasons why we opposed the intention of that amendment at that time, so it was a two-pronged approach.  This is a two-pronged approach as well.  Who knows what our approach would be if this were brought through full scrutiny.  We have reservations about minimum sentencing.  I will go into that shortly.  The reason why I said it was that, this afternoon, the Health Minister moved the Second Stage of the Mental Capacity Bill in the House.  He talked about the long process of framing that Bill.  He talked about the long process of scrutiny that the Ad Hoc Committee, of which I am a member, will give to the Bill.  He cautioned the Committee about amendments — I suppose, from his point of view, correctly — and that sometimes, even after full scrutiny, the intention of an amendment can take a Bill in the opposite direction.  He said that when you legislate in haste, you sometimes have to repent at leisure.  That is an appropriate observation, if you like, for this amendment.
A number of people pointed out the deficiencies, from their point of view, in the way in which this has been proposed.  Only two Members have spoken, so I assume that others, when they speak, will look at it in a number of ways.  We believe that to come at this stage of a legislative programme with a proposal like this, with no scrutiny process, does not allow the issues to be considered by the stakeholders involved:  the justice agencies, the PSNI and, I suppose, even the Sentencing Council.  Their views would, in my opinion, allow us to inform ourselves better of how we should take this forward and, in particular, how we deal with the issue.
I have elderly parents.  I accept that the vulnerability of older people is something worth discussing.  It is worth reminding ourselves that perhaps they do not feel as protected as they should.  The process to take us to the conclusion is not to come in at Further Consideration Stage.  I think that we all accept that Further Consideration Stage is the part of the process where you tighten up deficiencies after all the scrutiny.  While the proposers may be well intentioned, I think that, in many ways, this is a process of circumventing the system.  The point can be made — I will make it here, too, to the Justice Minister and, indeed, to any other Minister — that sometimes when a Bill is so broad, and we had a discussion about this previously, it nearly becomes a miscellaneous Bill.  When it becomes a miscellaneous Bill, you lay the ground for this type of clause or amendment to be brought in at the last stage.  It is totally legitimate with regard to the process, but with regard to the outcome, it is far from that.
If this ever resurrects itself in another guise, and so that I am not accused of saying that we should have full scrutiny but that we still POC'd it at the end, I want to say that there are issues around minimum sentences.  We have discussed this before.  There have been other motions in the House and indeed circumstances when legislation was seeking minimum sentences and we spoke against them.  I well remember a private Member's motion dealing with this issue.  A number of Members said that a minimum sentence did not allow for judicial discretion or the circumstances to be taken into account.
There is even the framing of this amendment.  Many would ask, "Why 65?  Should the same protections not be offered to 64-year-olds?"  The amendment may be well-intentioned to try to deal with an issue that we need to deal with, but, in our opinion, this is not the way to do it.  With that in mind, particularly around the principle of no scrutiny, we were certainly willing to sign a petition of concern.
If it is brought back to a Committee, we will certainly raise the other points around clarity, minimum sentences and even whether it is an idea to pick an arbitrary figure and say that some will be protected at that age and others will not.  That is something that we will discuss at that stage, but for the purpose of tonight's debate, we are supportive of the concept and use of the petition of concern.  Go raibh mile maith agat.

Alban Maginness: The SDLP is supportive of amendment No 6, and we commend Mr Alastair Ross for bringing it to the Committee and the House.  The amendment will fill a gap that he spotted.  It does not exclude the possibility of a prisoner who is released early from, if it is appropriate, getting gainful employment.  In any circumstance, one would desire that to happen, and it is important that this is permissive rather than mandatory.
In a way, that helpfully leads into amendment No 7, on sentencing for violent offences against older people.

Basil McCrea: Will the Member give way?

Alban Maginness: Yes, indeed.

Basil McCrea: Just before you move on to amendment No 7, I am interested in your thought processes regarding the permissive nature of amendment No 6.  It seems that these terms are quite loose:  that people "may be required".  If it is such a good idea, should we not be a wee bit more exacting in the matter?  Why does the Member favour that form of the amendment?

Alban Maginness: First, it fills a gap, and, secondly, it provides a flexibility that is helpful in dealing with the early release of prisoners.  In circumstances where a prisoner has gained early release, we have to provide, in my view, an environment in which that person can constructively live in the community and, to some extent, pay for the harm that he did to the community.
I believe that Mr Ross and his colleagues intend for this provision to do that, and that is a worthwhile objective.  It remains to be seen how it would work in practice.  Nonetheless, it is better that a person who is released from prison early, who is carrying out work in the community gratis, without being paid for that, is provided with discipline and a structure to their lives that might otherwise be absent.  It does not exclude a person, where an opportunity arises, from taking up gainful employment.  I will give way to Mr Ross.

Alastair Ross: I thank the Member.  He is explaining very well the rationale behind the amendment and its importance to someone who has been released from prison.  We are talking about very low-level people who have had model behaviour in prison but who have the opportunity to turn their lives around and contribute to society.  He is absolutely right on that point.
The other point is that the flexibility that the amendment offers is important.  It allows the Probation Board, which is ultimately the organisation that is responsible for monitoring offenders, to work with the Department to ensure that the detail on this is adequate.  I think that it is important that we allow the Probation Board, the Prison Service and the Department to work together to bring that forward.  I am sure that the Minister would commit to consulting with the Committee as the detail of this is worked out.  However, I think that the principle of this is something that everybody should be able to support.

Alban Maginness: I am not sure whether our combined efforts satisfy Mr McCrea.  As I said, the fact that it is not mandatory is a useful entrée into the next amendment, amendment No 7, which is mandatory and which we in the SDLP oppose.
People are quite rightly outraged by violent offences against older people.  That goes without saying, and I think the whole House would defend older people against violent attacks.  That is right and proper, and the SDLP, amongst other parties, supports that.  However, I have to say that there are other violent crimes against other categories of individuals.  Violent crime is something that is repulsive and something that all of us condemn, but there are other categories of people that we could select as being extremely vulnerable, such as vulnerable adults, those with learning difficulties, those with mental health difficulties —

Patsy McGlone: I thank the Member for giving way.  I hear entirely what the general thrust of the amendment is about.  I think that Members will recognise this, as they have sat through the evidence-taking sessions on the Mental Capacity Bill and heard of the frailties and vulnerabilities of people who find themselves in those situations.  They could equally be regarded as vulnerable and as subject and more susceptible to violent acts, and, indeed, as people on whom others prey.  While I hear the general thrust of what you are saying, and I agree with it up to a point, you have to say that there are others who would equally fit the bill of being prone, vulnerable and susceptible to violent acts.

Alban Maginness: I could not have put it better myself.  The point that has to be made is that the authors of the amendment — I do not, in any way, impugn their motives — have selected the category of older persons.  That is a category that is deserving of protection and support, but as Mr McGlone said, there are other categories.  Children are, of course, one such category.  We have talked about older people, and we could talk about children, who particularly require protection, help and support.
There is no opposition to the general thrust of amendment No 7, but it is focused on one particular group.  Our objections to amendment No 7 are much wider than its selective nature, no matter how deserving that category.  Our objections are, in essence, to the mandatory nature of the amendment.  It means that a mandatory minimum sentence of seven years will be imposed on somebody who is convicted.
As a party, we take the view that mandatory minimum sentencing is not in itself a good thing.  There are certain exceptions where it, in fact, is done.  In excess alcohol cases, for example, you will lose your licence for six months, a year or whatever.  Those are mandatory minimum sentences, but they are the exceptions.  Murder, of course, carries a mandatory life sentence, although that is an expansive term.  A life sentence is an elastic term because it can mean a wide range of years of imprisonment.  Mandatory minimum sentencing is a very limited thing, and we should proceed cautiously in creating a new mandatory minimum category that, effectively, ties the hands of the court in exercising its judicial discretion. I listened carefully to what the proposer said in relation to exceptional circumstances and understand that that, to some extent, qualifies the mandatory nature. Nonetheless, from our point of view, it is still not an acceptable proposition.  We do not believe that you should constrain the discretion of the court to the extent that the amendment does.
The other point I want to make on this is that the tariff is seven years.  I do not know how the supporters of the amendment arrived at seven years.  You could easily have arrived at five years, four years, 10 years or whatever. There is no visible rationale for arriving at what I would suggest is an arbitrary figure of seven years.  I recognise that it is a fairly substantial sentence, but where is the rationale for arriving at the specific figure of seven years? That has to be fully examined.
(Mr Speaker in the Chair)
Proposed new clause 89A(3) states:
"For the purposes of this section "violent offence" means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition)."
I quote that, but the material point I want to make is that the offence relates to:
"physical injury to a person aged 65 years or more".
Now, if Mr McGlone were over 65 — he is not; he is a very young man — and I gave him a clout on his head, which of course I would never do, and he sustained injury, would I be within that category if I was found guilty?  Would the court then decide or feel obliged to impose a seven-year sentence?  My point is that physical injury in the context of the amendment is ill defined; in fact, it is not defined at all.  I understand the proposer's intent, which, I assume, is to deal with a much more serious injury than simply giving Mr McGlone a clout on the side of the head.  It is something that I would have thought would cause some sort of serious injury.  That requires definition, but that definition is not contained in the amendment.  The amendment is defective, at least in that regard.  I could explore that even further, but I will not do so.  It is sufficient to raise that point, which shows a specific and, I would say, fatal weakness in the amendment.
I will make one further point, and it is a point of substance. The amendment — I know that it is well intentioned, but it is ill thought-out — should really have been discussed at the Justice Committee thoroughly in detail.  We should have heard evidence in relation to the proposal.  Mr McCartney made a fair point on that.  That did not take place.  It is such a serious proposition and such a point of substance that it requires further examination, and it would have required the full attention of the Committee in a series of meetings and discussions.  That reason also makes the amendment something that should not be acceptable to the Assembly.
The final point is this: we employ judges to make decisions and to exercise judicial discretion.  We put a lot of faith and trust in judges.  Sometimes, they get it right; sometimes, they get it wrong.  The point is that we appoint people to judge and to exercise a judicial discretion.  What we are doing in the amendment is removing that judicial discretion. It is something of value.  We could replace our judges with computers and just feed in the information to the computer and get the result, but we do not do that; we employ a human being who is experienced and legally trained to exercise judgement and discretion.  We should leave it at that.  The amendment, whilst well intentioned and based on a need to protect the vulnerable in our society, particularly the elderly, is ill thought-out and defective.  Therefore, we in the SDLP cannot support it.

Tom Elliott: These are some of the more controversial amendments at Further Consideration Stage today.  Mr Allister's amendment No 6, which concerns unpaid community service, is quite interesting.  Who has heard of that for some time?  It is a positive contribution, in fairness, to the justice system.  We want to give alternatives, different mechanisms and means as opposed to custodial sentencing.  That is one option.  It is an interesting project and proposition, and it will probably find support around the House.  I was interested to know about the discussions that he has had, particularly with the Probation Board.  He outlined the informal discussions, and, when some people gave evidence at Committee, he probed on that.  It seems to be one that will gather momentum.  There are some outworkings to be carried out in relation to how it would progress, but that is an opportunity for another day.  The principle of what Mr Allister proposes is probably well grounded.
There is somewhat more controversy on amendment No 7.  I hear what Members are saying around the Chamber.  I listened to Mr Maginness intently when he said that people were rightly outraged by attacks against older people.  He is absolutely right in that, but many people are outraged at the lenient sentences that are often handed out by the courts.  People are equally outraged by that.

Alban Maginness: I thank the Member for giving way. From time to time, people are outraged by lenient sentences, but we have not heard any evidence in the House today or at the Justice Committee on the issue of lenient sentences, particularly in relation to violence against older people.  That is why I suggest that the amendment is based on what I would suggest is a false premise.  We have not been able to properly analyse the problem that the amendment is supposed to address.  If the Member has evidence in relation to lenient sentences that is more than simply anecdote, he should present that evidence to the Assembly.

Tom Elliott: I thank the Member for that.  We do not have to think back too far: although it was not for violence against older people, there were lenient sentences for the people who mistreated the dogs.  There was actually a campaign.  We hear on a regular basis about the courts handing out lenient sentences —

Basil McCrea: Will the Member give way?

Tom Elliott: I will give way in a moment.
I am happy to take evidence, but it is somewhat remote of us to say that we should not bring it forward at this stage.  I accept the point that it probably would have been better to have a discussion in Committee — I do not disagree with that — but we have another group of amendments coming later that have not been to Committee that the SDLP has co-signed.  They have been to Committee on a different aspect but not for the Justice Bill.

Basil McCrea: I thank Mr Elliott for giving way.  On his point about leniency and how the public are not happy, does he agree with Mr Wilson that judges are a bit out of touch with the rest of society, or does he take a different view?

Tom Elliott: I thank the Member for that.  I am sure that some people would say that politicians are out of touch with society as well.  People of all shades will indicate that some judges may be out of touch.  I am not saying that they are; I am not making any judgmental decision on that.  All that I am saying is that, at times, people are frustrated at lenient sentences.  People in whatever profession will always come in for criticism.  A car mechanic will often get criticism for not changing some part on your car.  It is natural that people will get criticism, whether they are judges or anyone else.
Mr Maginness also raised the issue of needing to look at other aspects as well as violence as against older people and said that maybe we needed to look at violence against vulnerable people.  Maybe we do. I am not one for putting a carte blanche process in place whereby there is a minimum sentence for everything, but there are some aspects where there is a requirement for minimum sentencing.  Maybe violence against vulnerable people is another of those.  I certainly think that serious violence against older people is one.
There are a couple of queries in the amendment that I would like to hear clarified.  I know that the Members who tabled the amendment have not yet had the opportunity to speak, but I will put it on record now that subsection (3) of the new clause reads:
"For the purposes of this section 'violent offence' means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson".
Is the point about arson linked to the aspect of physical injury, or are they separate issues?  I am looking for some clarity on that.  Also, subsection (4) talks about "exceptional circumstances".  I would be interested to hear the Members' views on how wide those exceptional circumstances will carry.
I know that somebody said earlier that, if there are so many exceptions, what is the point of putting it in.  I do not accept that point.  I think that you can, and should, have exceptions.  All that I am looking for is for the signatories to the amendment to put on the record in the House what those exceptions are.
By and large, I do not give minimum sentencing carte blanche support, but I think there is a point to having it in certain cases.  I think that the public are outraged that there is such violence against older people and such lenient sentences handed down in some cases of violence against older people, and, indeed, in other cases.

Stewart Dickson: I welcome the opportunity to speak to the second group of amendments.  They relate to early release conditions and some sentencing proposals, as we have heard in the debate.  I do not intend to go much beyond what at least two of the Members who spoke said this evening, but I want to contribute to the debate on amendment No 6, which was proposed by Mr Ross.  
There is considerable merit in what he is proposing.  It seems to me that he is taking us in a restorative and positive direction, although I have some concerns that bringing forward such an amendment may veer into the realm of departmental policy.  Therefore, I think it is important that, as we work this through, collaborative work is done by the proposer and the relevant agencies and the Department to see the amendment's practical outworkings.

Basil McCrea: Will the Member give way?

Stewart Dickson: Yes.

Basil McCrea: It is interesting that the Member is supportive of amendment No 6.  Will he outline some of the detail behind it?

Stewart Dickson: That is the very point that I was making.  When such an amendment comes forward, it is important that we have an opportunity to go through the detail of it.  That is why I was suggesting that it veers into the realm of departmental policy.  We as Committee members will receive that policy and see in detail the practical outworkings of those things.  Having been at the meetings that Mr Ross referred to, and given that there are agencies out there that can deliver on prisoners being provided with that type of work on release, I am generally satisfied that it is a road that we should continue down, and continue down in the Bill.

Basil McCrea: Will the Member give way?

Stewart Dickson: Yes.

Basil McCrea: When I was on the Justice Committee, there were discussions about community service, and suggestions were made that people should wear clothing that is easily identified.  Does the Member think that that is an area that we ought to be going into?  Do we need to look at that in more detail?

Stewart Dickson: I well remember the debate about the type of clothing.  I found that to be a particularly offensive aspect of it.  Certainly, having listening to Mr Ross, I do not believe for one second that that is the area that he is intending to veer into in any respect.  In fact, the discussion about those prisoners who are going on early release and who, for example, have gained remunerated employment in the community would be facilitated.
The issue has been substantially worked through in the Republic of Ireland.  This might be an opportunity for the Committee and its Chair to deal with and explore those issues further.  There, a requirement is placed on the Minister to look at it as an alternative, and it requires the Department to work up an appropriate scheme to deliver it.
I will turn to amendment No 7.  It is the area that causes me the greatest concern.  Put simply, if implemented, it is my belief that amendment No 7 will make for bad law.  Any violent crime against any person is unacceptable, regardless of that person's age or circumstances.  We have heard Mr Maginness and others provide us with long lists of many people who are vulnerable, or who perhaps are not vulnerable but become vulnerable as the result of a violent crime against them.  While there have been horrendous circumstances in which people who are perhaps older have been traumatised by violent crimes against them, to single out those who perpetrate crimes against older people as a particular section for a particular type of sentence is very difficult.
Indeed, to draw an arbitrary line at the age of 65 causes me concern.  One of my party colleagues is 65 tomorrow, so if she were violently assaulted today, a judge might award a three-, four-, five-, six- or seven-year sentence against the perpetrator, but tomorrow they would have to implement a seven-year sentence.  The judge would have no discretion whatsoever to take into account the circumstances of the event.  We should allow the judge to do what none of us in this Chamber can do.  We can hypothecate for as long as we like, but until we hear the actual circumstances and the detail of what has gone on, it is impossible to provide the appropriate sentence and regime for dealing with the matter that occurred.
It is perhaps even less wise that we attempt to usurp the position of judges by sticking an amendment onto legislation that bears little resemblance to the legislation in the first place.  One could, indeed, conjugate any number of circumstances that would mean that a person could go to prison as the result of a minor scuffle due to the loose wording of this poorly drafted amendment.
Violent crime against any member of society is, as I said, unacceptable.  We must do what we can, and what we should do is prevent it through good crime prevention.  When such crimes happen, we should rely on our judges to deliver justice.  The proposed amendment will not do that.  It will cause confusion, and that is an inappropriate way to deal with this matter.  Like others, my party and I have concerns about mandatory sentences for the very reasons that I outlined.  Once we make law, it is our role to pass that to the judiciary, and it is for that arm of the law to determine the appropriate sentence for the crime that has been committed.  In the circumstances, therefore, I will not support the amendment, and I call on the House to oppose it.

Sammy Douglas: I support amendment No 6, which has been tabled by my colleague the Chairman of our Committee.  I will make a few general comments, because there seems to be some consensus among Members present.
We are not debating a new idea in conditional early release.  It has been utilised for some time in other jurisdictions, as ideas on how best to rehabilitate and resettle offenders change and develop.
We are talking about an extensive early release scheme, such as exists in Great Britain and the Republic of Ireland.  England and Wales, for example, together with Scotland, operate home detention curfew arrangements, while the Irish Prison Service launched a community return scheme in 2011.  Those schemes see sizeable numbers of prisoners released early from the custodial parts of their sentences.  In the Republic of Ireland, the community return programme is an incentivised scheme that provides for earned temporary release, under which offenders who are assessed by the Irish Prison Service are offered early temporary release in return for supervised community service.  Officers of the Probation Service assess offenders as to suitability and motivation to complete the community work.
I suppose that, in one sense, we all recognise that people who receive a custodial prison sentence have been found guilty of breaking the law and are being punished by being deprived of their freedom, but here we are talking about a small number of prisoners who present a low risk of reoffending and have been model prisoners during their time in custody.  Their release is under strict licence conditions.  I certainly believe that it is important to reward hard work and exemplary behaviour to help low-risk offenders to reintegrate into society more quickly
The scheme must be deliberately restrictive because we need to maximise public confidence in it, and in the wider criminal justice system, so we are targeting the release of low-risk, model prisoners.  In a previous role, I worked with ex-prisoners, and I have a question to which maybe the Minister or someone else will provide a response.  Certainly, in those days, some prisoners were released early because they got a job.  Are we including in early release only people who are able to take up a paid job, or are we talking about those who will take unpaid community work?  No takers?  OK.
Article 19 already provides the Department with quite a wide-ranging discretionary power to release prisoners early, and, certainly, the Minister has that power.  I welcome the departmental proposals, including:
"a number of tests, which have been drawn up to ensure that only those offenders who have demonstrated that they pose a low risk of reoffending, have been well behaved whilst in custody, have approved, stable and supportive accommodation in the community and have complied fully with all conditions imposed during any early periods of temporary release would qualify to be considered for early release."
The Bill must ensure public confidence in the scheme, and I am pleased that the Department has further tightened the original qualifying criteria.  Maybe the Minister will outline the tightening-up of the criteria.  The Department said that it has included:
"offences that will give rise to the presumption that a prisoner is unsuitable for early release."
The Department is clear:
"These exclusions follow closely those offences that are already applied in Great Britain on a non-statutory basis and that deem the applicant to be presumed unsuitable for home detention curfew.  They identify prisoners who have been convicted of a crime, the serious nature of which makes them unsuitable for consideration for early release, and who, if so released, could undermine public confidence in the scheme and, by association, the wider criminal justice system.  While these excluded offences will not preclude an individual from applying for conditional early release (CER), their existence will deem the applicant unsuitable for release unless they are able to convince the governor that exceptional circumstances exist to support their release and that such a release will not have an adverse effect on public confidence."
I want to finish by saying that I welcome the fact that the licence will also provide a curfew condition, provided under article 26 of the order, which will require a released prisoner to remain at a particular place for a set period each day during their early release period.  That period cannot be less than nine hours in any one day, and prisoners who fail to comply with the licence conditions may be recalled to custody at any time before the custody expiry date is reached.  I am sure that there will be some sort of review of the scheme, and I ask the Minister to detail what the process and extent of that review will be.  I support the amendment.

Edwin Poots: One can consider the issues in a very clinical way, or one can look at the circumstances of our elderly people and the care and protection that society should provide for them.  That is a significant duty that falls upon us.  It falls upon us as a legislature, and it falls upon the Police Service, the Public Prosecution Service and the Courts and Tribunals Service.  We all have to act in unison to ensure that we protect our elderly so that they do not become prisoners in their own homes.  We must ensure that, as a society, we cherish and care for them.
I was reading through transcripts from my local paper from days gone by and came across the headline, "Elderly couple attacked in their home".  The article states:
"A couple in their 70s were attacked and beaten by a gang of masked men who stole two guns from their home in Lisburn."
Another article states:
"An elderly couple have been rescued from a deliberate fire at their Lisburn home."
Another states:
"The elderly couple were tied up while the robbers ransacked the house."
That attack happened at Blacks Road.  I can recall very vividly when a couple on the Causeway End Road in Lisburn were attacked and the man was badly beaten.  Indeed, he died a relatively short time thereafter.
We need to take into account that those things are happening in our community, and we need to do something about them.  The Programme for Government recognised that and indicated that more needed to be done to protect our elderly.  Indeed, a motion was passed in the Assembly in November 2011 calling for tougher sentencing for those who attack our elderly.  Here we are, almost four years later, and that has not happened.  I know that the courts have been doing bits and pieces, but the legislature has not taken action on the issue.  That action has not happened in the Executive.
Sadly, in 2013, 4,766 crimes were perpetrated against our elderly people.  I will repeat that:  4,766 crimes.  Of those, about 200 involved violent attacks, 54 were robberies, 27 were sexual offences; there were 150 cases of fraud and 1,154 burglaries.  And so it goes on.  That is clearly unacceptable, but it is even more unacceptable that only 4% of those cases were brought to court.  Does anybody honestly believe that we are doing enough to protect our elderly population?  I do not.
I was somewhat surprised when I heard that a petition of concern was launched today, because who are we seeking to protect through the amendment?  Elderly, vulnerable people in our community who have been subjected to violent attacks, normally by thugs or some other person who cares little for the well-being of our older population.  To lodge a petition of concern on that issue is significant abuse.  In the past, this party has sometimes been lectured by others about abusing petitions of concern, but it is a significant abuse of the petition of concern process to use it to stop legislation that would offer greater protection to our elderly population and community.
Mr Maginness raised the issue of the level of assault.  I know that he has practised in the Bar for many years while he has not been in politics.  I do not need to explain to him the difference between common assault and assault occasioning actual bodily harm.  We are talking here about assault occasioning actual bodily harm.  This is not about common assault; it is about violent offences against older people.  That should be quite clear as it is written up in paragraph (3).  I know that Mr Maginness understands that very fully.
Mandatory sentencing is not peculiar or odd.  Sinn Féin has stated the position that it is generally not keen on mandatory sentencing.  As Mr Givan rightly pointed out, it is using the excuse that this is coming at Further Consideration Stage and, therefore, it is expressing its views through the petition of concern.  Mr Givan indicated during the abortion debate that Sinn Féin said that its approach was two-pronged and that its approach on this one is two-pronged and that Sinn Féin is against mandatory sentencing per se.  We have mandatory sentencing for drunk driving here.  If someone is massively over the drink-driving limit, they will lose their licence for at least 12 months; if someone is over the drink-driving limit by a minuscule amount, they will lose their licence for at least 12 months.  That is mandatory sentencing in effect.  I have not heard a public outcry saying that we need to get away from this mandatory sentence that is imposed on people who drink and drive.  It is widely and strongly supported, and Members would do well to recognise that.
In England and Wales, there are prescribed mandatory sentences for certain offences, including firearms offences, repeat drug trafficking, domestic burglary offences and certain offensive weapons offences.  In Scotland, there are mandatory minimum sentences for some firearms and drugs offences.  In the United States of America, federal law has mandatory sentences for certain immigration offences; identity theft; sexual offences against children; production, possession or use of fire or explosives; airplane hijacking; obstruction of justice; illegal food stamp activity; kidnapping; hostage taking; bank robbery; racketeering and organised crime; fraud, bribery and white-collar crime; piracy; certain types of assault or battery; assault of a US serviceman; interference with Civil Service examinations; stalking and violation of a restraining order; treason; failure to report seaboard saloon purchases; practice of pharmacy and sale of poisons in China; navigable water regulation violation; deposit of refuse or obstruction of navigable waterways; deposit of refuse in New York or Baltimore harbours; violation of the Merchant Marine Act; refusal to operate railroad or telegraph lines; and so it goes on.  What we are calling for is mandatory sentences for violent attacks on the elderly.  I would have thought that violent attacks on the elderly were considerably more important than dumping waste, for example, in Baltimore harbour.  That is accepted in other areas.
For aggravating factors in sentencing guidelines, research has identified that, in federal law again, sentencing guidelines allow for victim-related adjustments to be made.  The guidelines provide that, if the defendant knew that the victim of the offence was a vulnerable victim, the sentence should be increased by two levels.  A vulnerable victim is defined as a person who is unusually vulnerable due to age, physical or mental condition or who is otherwise particularly susceptible to criminal conduct.  Similarly, the Minnesota sentencing guidelines include among aggravating factors the fact that the victim was particularly vulnerable due to age, infirmity or reduced physical or mental capacity and that the offender knew or should have known of that vulnerability.  Very clearly, in other places, minimum sentences are not unusual and, indeed, offences that have involved the elderly are taken into account.
Other countries that have minimum sentences include Canada, Australia and New Zealand; countries that are not regarded as being particularly draconian but where good practice is followed in law.
Mandatory sentences reflect a societal judgement that certain offences demand a specified minimum sanction and ensure that anyone who commits such a crime cannot avoid punishment.  It recognises that legislatures are very often better positioned than judges to make types of judgements on penalties and that legislatures have the authority to make moral and empirical decisions about how conduct should be sanctioned.  Mandatory minimum sentences address two widely acknowledged problems:  sentencing disparity and unduly lenient sentences.  Mandatory minimum sentences prevent crime because certain and severe punishment has a deterrent effect whether we like it or whether we do not.  They are an important law enforcement tool, supplying the police and prosecutors with leverage to secure cooperation and testimony of low-level offenders against more senior confederates.  Imprisonment reduces the number of future victims of crime and reduces that cost that the rest of society would otherwise suffer.  Those are the main reasons for mandatory sentencing.
I see that Mr Allister is amongst us, and he raised a very important issue the last time.  That is why, when I brought this amendment to the House, I brought it forward as a presumptive mandatory sentence.
He raised the case, and the exceptionality clause is there when, for example, an individual may have been engaged in an act of sexual molestation against a young person.  That young person's father may have decided to take the law into his own hands, wrongly, and attacked that elderly person, who may have been 66 or 67 years of age.  Of course the judge should have the ability to give consideration to the exceptionality of a case like that.  There are many other cases that could be cited in which it should be left to the wisdom of judges, but those things should happen in exceptional cases.
Mr Maginness asked this question:  why seven years?  Why not two years, four years or 10 years?  This is not going to go through tonight because of the petition of concern, but I would be quite happy to debate those issues, as we are going to have another piece of justice legislation coming to the House.  I welcome that this is now being debated and that these views are being aired.  There may well be a sentencing Bill coming to the House as well.  So, I will be happy to test the appropriate time, but I certainly think that the lower end of the scale does not give the indication of support to our elderly community.  It does not have the deterrent factor that a period like seven years would have.  Therefore, I think that that is an appropriate sentencing period.
I noted that in British Columbia, a civil liberties group carried out a piece of work that was very critical of mandatory sentencing and sought to run it down.  One of the cases that it made was that mandatory sentencing had increased costs by 66% whilst driving down crime by only 30%.  I would consider that to be a price well worth paying.  In the next Assembly mandate, I would love it if we were able to achieve a 30% reduction in crime and, in particular, a significant reduction in crime against our elderly population.
We all have a vested interest — I always said this in my previous job — in looking after the elderly, because unless we happen to die whilst we are relatively young, we will make it at some stage to being elderly ourselves.  We should do everything in our power to provide that care and support for and to show that respect to our elderly community.
I have heard quite a few people saying tonight that the amendment is ill-thought-out.  I have not heard the arguments to support that.  I have heard a little bit of nitpicking, but I have not heard of qualitative arguments to oppose it.  As I said, I am hugely disappointed that a petition of concern was used to block this particular amendment, which is about protecting vulnerable, elderly people who have supported us and provided for us over the years and who we should be providing support and care for now that we are in a position to do it.

Jim Allister: I will address myself to amendment No 7.  I will begin by saying that I think that it is wholly inappropriate that a petition of concern is being used to address this matter.  This is something that the Assembly should be able to debate rationally and to reach a decision upon and decide the matter on its own merits or demerits.  If a proposition deserves to be defeated, it deserves to be defeated on its demerits, not because of a petition of concern.  I think that is an important point to make.
I will vote against the amendment, because I think that there are always dangers when politicians put themselves in a position where they think that they know better than the judges on legal issues and when they think that the judge who might have sat and listened to a case for three or four weeks is not the person in an unfettered way to decide upon conviction what the appropriate sentence should be, but that we, who have never heard a day of the case, should sit in this House and postulate into the future and say, "This crime should and must attract a mandatory minimum sentence".  That, in principle, is foolish and wrong, and we should allow judges to do the job that they are there to do.
Also, there is some muddle in this amendment.  Proposed clause 89A(3) states:
"For the purposes of this section “violent offence” means an offence which leads or is intended or likely to lead to the death of a person".
I want to stop there.  It classes all those together and says that if a violent offence leads to, or intends to cause, death then a minimum sentence of seven years will apply.  A very pivotal and critical component of our criminal justice system is that there is a distinction between the crime where you set out deliberately intending to inflict grievous bodily harm or kill and the crime that does not have that intention but has that eventual outcome.  The law has always rightly recognised that there are gradations in sentences on issues such as that.  Right at the outset, this amendment blends all that together and says, "Whether you intended it or whether it just happened, you are subject to the same minimum sentence."  In principle, that is hopelessly flawed.
It then goes on to categorise in the same bracket, and I am paraphrasing, an offence that is intended to lead to the death of a person aged 65 years or more or that leads to physical injury to a person aged 65 or more.  They are all the same within this amendment.  Whether you actually intend the death of the senior citizen or whether you do not intend it but the offence leads to the physical injury of the person, the two are just bracketed together.  That cannot be right, because the physical injury that we are talking about could be something that would not even amount to assault occasioning actual bodily harm.  If someone is pushed in a scuffle, falls and breaks a finger, they have suffered physical injury.  The person who did that, under this amendment, is to be subject to the same minimum sentence as the person — that the legislation even anticipates — who set out intending to kill someone.  That cannot be right.
Mr Poots said that this is all about assault occasioning actual bodily harm.  Is it?  All it talks about is physical injury.  Let us say that it is assault occasioning actual bodily harm that this is looking at.  It is saying that if you occasion actual bodily harm to a senior citizen, the minimum sentence is seven years.  Here is part of the muddle of this amendment:  under the law, as it stands, the maximum sentence for occasioning actual bodily harm in Northern Ireland is seven years.  This amendment is saying that, without purporting to amend or alter at all the Offences Against the Person Act or the Criminal Justice (No. 2) Order 2004, which increased the threshold to seven years, we are now going to import the same minimum sentence as the law provides as the maximum sentence for the offence of occasioning actual bodily harm.  That just does not add up.
If it is some other offences that are intended, let us remember that there are basically four gradations of assault from common assault, assault occasioning actual bodily harm, inflicting grievous bodily harm under section 20 of the Offences Against the Person Act to causing GBH with intent, which is covered in section 18 and for which a life sentence is available.  If you go out intending to cause the death of a person, whether they are aged over 65 or under 65, you are not likely to be charged with assault occasioning actual bodily harm.  You are likely to be charged with attempted murder or something of that order, where the life sentence is available.
I do have to say that, no matter what way one reads this amendment, it does strike me that it is riven with muddle and confusion about what it actually would achieve.  It then says that, in exceptional circumstances, the judge can set all that aside.  What is the point then?  What is the point in circumstances where our judges today have the full discretion as to how they sentence someone, into which they will weigh and measure the background of that person and the nature of their victim, which can be an aggravating factor, and come to a decision on what the appropriate sentence will be?  That is the way that it should be.  It is not for this House to apply one size fits all and say, "You will have a minimum sentence for any violent offence to a senior citizen".

Paul Givan: I thank the Member for giving way.  The Assembly passed the Human Trafficking Act, which has the same exceptionality as there is in this amendment.  I cannot recall whether the Member voted in favour of that.  He may well have done so.  I know that other people on the opposite Benches did vote in favour of that.  The exceptionality is based on the same premise that the Assembly has already passed, so this is not a precedent.

Jim Allister: I may well have voted for that, but that is not the point.  The point is that judges, as they presently operate, give weight to the particular and exceptional circumstances of any case.  That is how they measure the sentence.  This proposition wants to turn that on its head and say that you shall, in default position, impose a minimum sentence, and that, if you do not want to, you have to circumscribe the special circumstances that justify you not doing so.  That is, in my view, totally undermining the judicial function and doing it in such a way that we really are getting ourselves to the point of asking the question, "Why have we got judges at all?".  Why do we not just issue them with a sheet that says that assault occasioning actual bodily harm is seven years?  That is really how foolish, I think, a road this is to head down.
You have to give judges the right to impose what, in their considered opinion, is the right sentence.  If it is the wrong sentence, it will be capable, as a serious matter, of referral to the Court of Appeal.  If it is capable of referral, the Court of Appeal can issue a guidance judgement on what sentence it expects in cases of that nature.  There are many guidance judgements that set the parameters on most of these things.  We are, therefore, tackling a job we do not need to tackle.  We should leave it where it is.
The final point I want to make is about the muddle of this.  It seems to me somewhat incongruous that someone can commit a criminal offence and then after the event, when they discover that the victim was 65, suddenly they face very different consequences.  This amendment says that, whether you knew the person was 65 or not, it is an absolute liability.  If they are over 65, you are hit with a minimum sentence.  That seems to me to be another dimension of politicians meddling too far in the sentencing process.  I do not think anyone would suggest that I am some sort of liberal on too many issues.

Basil McCrea: Heaven forbid.
[Laughter.]

Jim Allister: However, there are important principles at stake in how we operate our criminal justice system.  Meddling to this prescriptive extent is to take matters far too far.

Basil McCrea: I certainly would not call Mr Allister a liberal — I am sure he will be pleased about that — but I did listen, as I do to all his contributions, and his argument was cogent.  It appears to me that these amendments are for the optics.  They are a stunt.  They change relatively little — in fact, nothing.
I give Mr Ross the benefit of the doubt, because I know, having inquired, that he raised these matters at the appropriate stages in Committee, and perhaps there is some merit in amendment No 6.  But I was disappointed, I have to say, when I heard learned Members in the SDLP and the Alliance Party eulogising an amendment that gave no detail.  I think that you should look at the detail in these cases.  If we are going to pass legislation, then we ought to know what it means and what we are going to do with it.
There are so many caveats to amendment No 6:  "the Department may", "having consulted" and "may be required".  It is so open, we can just give it a by-ball and have a look at the departmental policy when we get it, as Mr Dickson said.  However, I have to say that there are areas that are fraught with danger.  The whole issues of probation and how we manage prisoner release and reintegration into society are important and not to be taken trivially.

Alastair Ross: I thank the Member for giving way.  Perhaps if he had still been a member of the Justice Committee he would understand better that article 19 of the Criminal Justice Order currently gives the power to the Minister.  The Minister at present is able to allow prisoners out on early release from prison.  He has this power at present, without any recourse to the Committee or to the Assembly.  Most Members who are coming at this amendment from an educated position have appreciated that there is a gap in the legislation.  That gap is being filled by an amendment that will allow the Minister to ensure that people who get early release from prison still serve out the remainder of their sentence in a more productive way, whether that be through community service or through getting paid employment, as some Members pointed out.  The Member may view it as a minor change, but, actually, it is a significant change.  It is something that the Probation Board wants to see, and that is why it is important that it works up the detail of the amendment with the Minister.  It is also something that I think can benefit wider society, and certainly benefit those of us who wish to see reoffenders be rehabilitated.

Basil McCrea: I am grateful to the Member for clarifying the position.  As I said, I am happy to listen to the viewpoint that he puts forward.  The point that I was making is that such matters should not come forward uninformed or unchallenged.  We will take a position that it is enabling, I guess.  Therefore, let us see whether we can do something with it in future.  My concern when I saw the amendment was around whether we had looked at the implications and thought them through.  I did not know, because it has not been stated in the debate yet — perhaps it was earlier, and I missed it — that the Probation Board was asking for those changes.  Those are matters that we have to take into consideration.  If I take it that there is some consensus forming around the amendment, there is no point in me going on about it, but I do think it is important that at least some people stand up and say, "Are you sure about this?".
Let me move on to a point about which I was also disappointed.  It concerns an area in which I am in agreement with Mr Allister.  The thought that our justice system should abolish the judiciary and end up with this group of people making decisions fills me with horror.  The idea that Mr Givan and Mr Poots are going to legislate for mandatory sentences for everything is appalling.  I heard Mr Maginness say that judges sometimes get it wrong.  Fair enough, but there is the Court of Appeal.  There is an entire process in which people go through and review what the situation should be.

Alban Maginness: Will the Member give way?

Basil McCrea: Yes.

Alban Maginness: The process for getting to the Court of Appeal is that the Attorney General looks at what is described as a lenient sentence and determines, in his opinion, that it is.  It goes to the Court of Appeal, which can then look at that in depth.  That is the mechanism that we have created, and we should use it.

Basil McCrea: That is the point.  I am in agreement with that.  I do not support the view put forward by Mr Givan about some cultural warrior wearing a wig in a courthouse, nor do I support the view of Mr Wilson that judges are out of touch.  Judges are an essential part of our democracy.  There is a balance between legislation and the judicial system.  We look at that situation with the full rigour of legislation, but to try to say that we do not need the judiciary or some type of group of people who can take all the facts together is frankly appalling.
I do not know whether the signatories to amendment No 7 looked at this issue, but I looked at a decision by the Court of Appeal on 15 January 2015 regarding one Edward Stuart Cambridge.  I will read out what the offence was:
"In the early hours of 30 June 2013 a 58 year old woman"
— not a 65-year-old woman but a 58-year-old woman —
"suffering from numerous medical conditions which included spinal problems, arthritis and asthma was at home in her apartment in sheltered accommodation for the elderly or infirm.  The appellant entered her flat shouting 'Where is your money?' and asking for her bank account details."
He said other things, including:
"I am going to kill you".
After that process was gone through, what was the statement?  What did the Court of Appeal say?
It wanted to take the opportunity to state — Mr Poots brought up this issue — that the following principles applied: the starting point for robbery of households where violence is used should be 10 years — not seven years but 10 years — and this would increase depending on the age, vulnerability or infirmity of the occupiers.  This would increase the sentence to approximately 15 years, which would not be regarded as excessive. There is this notion that we should introduce seven years: why are you being so lenient?  Why are you seeking to reduce this?  Do you not care about the elderly and infirm?  Do you not want to see the full rigour of the law against those who perpetrate violence on vulnerable people?  Why are you identifying only some sections of the community?  Why are you not looking at the most base attacks against women, those with mental health issues and those who are vulnerable? This is a stupid amendment. It has been tabled for some sort of optics or to get some sort of advantage.

Mr Speaker: Can the Member address his remarks through the Chair?

Basil McCrea: Mr Speaker, I am addressing my remarks through you, sir.

Mr Speaker: Be careful about using the word "stupid".

Basil McCrea: Mr Speaker, sir, this is my assessment of the amendment.  It is not derogatory; it is my assessment of what has been put in front of me. I am entitled to that view.  I will move on.
I will talk about the Judicial Studies Board for Northern Ireland's sentencing in cases of manslaughter, attempted murder and wounding with intent.  There is an entire body of evidence on what people consider appropriate.  You get issues.  I will just mention one at random: 10 years when a defendant committed an unprovoked attack on a defenceless, vulnerable 71-year-old man in poor health.  All the case studies are here.  The judiciary does not take this lightly and does not ignore the aggravating factors.  It also looks at other issues that maybe should be taken into account, such as diminished responsibility.  It sets out in great detail how much weight should be given to those issues.  Through you, Mr Speaker, I put it that the amendment is not worthy of support.  It is not the right way to go forward.
Mr Allister, I think, challenged the petition of concern.  I signed the petition of concern, and let me tell you why: a bad amendment has been put forward that will not assist anybody.  It is trying to use and abuse the process by coming in at Further Consideration Stage.  Had this been properly investigated, reviewed and peer reviewed, you might consider it, but, coming in at this stage, it is for optics.  This is about people who have a career based on attacking the judiciary.  This is people saying that they do not trust the judiciary or the legal system.  Let me tell you that, if you end up in that type of country, you will regret it.  The pillars of our society and our civilisation are built on an independent judiciary.  You meddle with it at your peril.
A lot in the amendment is not clear, so let me say in conclusion that I am still not sure whether it involves issues to do with common assault or matters that go through the magistrates.  I am looking at the Offences Against the Person Act 1861: for the summary offence of assault where no injury is caused or where the injury is minor and non-permanent such as bruising, the starting point is a community order plus a compensation order.  If you are over 65, of course, it will be seven years.  There is no clarity about what the amendment actually seeks to do.  That is because it is poorly thought-out and poorly written and is poor law.  I can go through all the issues. It has brought me to the stage at which I am forced to sign a petition of concern because I cannot take the risk that this will go through.  Do you know what made me decide to do that?  It was the knowledge that the Ulster Unionist Party was going to support the amendment.  The Ulster Unionist Party — the party that used to pride itself on being the party of law and order — will support the amendment.  That is appalling.  It shows that you have no independent thought, and that is why I had to sign a petition of concern to defeat the amendment.

Claire Sugden: I welcome the opportunity to speak on the group 2 amendments.  I will briefly refer to amendment No 6, which is a progressive way of looking at rehabilitation, so I congratulate the Member for thinking outside the box.
On amendment No 7, I will start with the point that Mr McCrea finished on — the petition of concern.  I do not sign petitions of concern — they are an abuse of democracy — but tonight I signed my first petition of concern.  I do not see it as an abuse in this case.  I see it as a way of limiting people who think that they know better.  They can say that this is the will of the House — Mr Allister referred to that — but it is not the will of the House; it is the will of the guy who comes round, gives them the whip and tells them what to do.  This is a case where I felt that we needed to sign a petition of concern.
I struggle to find the parliamentary language for "stupid", Mr Speaker — I apologise for that — but the amendment is stupid and ill informed. It disrespects the entire sector.  Mr Poots says that we are protecting the older sector: we are not protecting the older sector.  If Mr Poots felt that we were protecting the older sector, he would know that the Commissioner for Older People Act (Northern Ireland) 2011 defines older people as those aged 60 and above.  In some circumstances, someone aged 50-plus can be defined as an older person. If we are really to respect the sector and do what we intended to do, let us put some facts to it.  To be honest, even the Office of the First Minister and deputy First Minister does not know how to define older people — it cannot get its active ageing strategy off the ground. I have difficulty when a party tables an amendment to protect the rights of older people while dragging its heels on other issues that make more sense.
I recognise the sentiments in the amendment.  In my constituency, we have had cases of older people being dragged from their home. By all means, their attackers should be punished; I do not disagree with that.  What irks me about this amendment is that disabled people, ethnic minorities, children and other vulnerable people who are abused — in fact, everyone who has had an offence committed against them — should have the same satisfaction of knowing that the offender will be held to account.  Generally, we disrespect older people by saying that they should be elevated in that way.  I do not agree with that.
The Members who tabled the amendment lazily try to define a "violent offence".  I take exception to that, too.  They laboured the point about sexual abuse.  Should a sex attacker not experience the same repercussions as someone setting out to kill someone?  It is just a very lazy attempt at legislation.
The amendment leaves out mental abuse.  Across Northern Ireland, we have heard of older people being mentally abused in care homes.  That can be just as bad a crime as physical abuse.  The huge holes in the amendment also disrespect the sector.
I will not claim to know law in the same way as people in the House who have worked in the profession know it, but they have demonstrated that the figure of seven years is completely uninformed.
If we are to protect the rights of older people, let us do it right; let us not tag it on to a Further Consideration Stage.
I agree with other Members:  the sentiment is there.  However, if you really meant it, you would have tabled it at Consideration Stage and we would have had the opportunity to amend it at this stage.  I get the sentiment, but I do not quite accept the intention.
I signed the petition of concern on the amendment, and I think that I had a valid reason for doing so.  It highlights the inability of some Members to draft legislation, and that is a bigger crime than any of the other abuses of the petition of concern in the past.  I will not support the amendment.

Paul Givan: I do not intend to cover the ground that my colleague Mr Poots covered; he articulated very coherently the rationale behind what we have proposed.  I note that nobody sought to make any interventions to him and, indeed, Mr McCrea and Ms Sugden spent the entire time talking to each other.  I can understand why they are still ill informed about what is being proposed.  Maybe when they get some manners, they can get a little more informed.
Mr Allister made the point about the petition of concern being an abuse, and it is.  My party does it, and we will defend the times when we decide to use it.  However, other people should not now lecture the DUP about abusing the petition of concern mechanism.  We are all now the guilty parties:  Mr Lunn signed one for the first time and Ms Sugden signed one of the first time; we seem to have a lot of firsts recently when it comes to petitions of concern.  We are all at it.  Mr Allister is shaking his head profusely; he has not done it.  Sorry, Mr McCallister has also continued with the principles that he founded in NI21, which once had a principled position on that.  Like other principles, it seems to have departed from that organisation.
This party could have used the petition of concern against Mr Allister's amendments on preliminary inquiries.  I regard preliminary inquiries as an abuse of vulnerable witnesses, and that is why I did not vote for them.  I believe that people are put in the box and interrogated by lawyers, barristers and so on to put the frighteners on them so that they will not proceed.  I regard those inquiries as an abuse of those individuals; that is my position.  We could have tabled a petition of concern on those amendments, but we did not.  Therefore, it was the will of the House for the amendments to pass, and I accept that.  Interestingly, others tabled a petition of concern on this issue and sought to block the will of the House.  Whether it would have passed, I do not know.
The crux of the argument that a number of people intimated was around mandatory minimum sentencing; that seems to be a principled issue, and it certainly was for Mr Allister.  He is someone whom I regard as being very much to the right on a lot of issues, and I am there with him on a lot of those issues.  However, I cannot agree with him on the premise that he articulated about the judiciary having a discretionary power and being able to decide on all those issues on sentencing.  It is something that a parliamentary, democratic institution has within its preserve to consider and, if we feel it appropriate in circumstances, to legislate on.  We did that on human trafficking, and I think that Mr Allister admitted that he voted for that.  He voted for a mandatory two-year sentence but with an exceptionality clause.  Mr Maginness also voted for that.  I cannot recall Sinn Féin's position.

Raymond McCartney: Against.  Totally against.

Paul Givan: Mr McCartney said that he was against it, so they were principled on it.  Other Members argued about mandatory minimum sentences, but, in other circumstances, they take a different position.
It is right to have presumptive mandatory sentencing in certain circumstances, and my colleague outlined other countries where mandatory minimum sentencing is the norm on a lot of issues.  This is not a mandatory minimum sentence; it is a presumptive mandatory sentence.  Other jurisdictions do that.  They have judges, and they have not abolished the judiciary in any of those countries — in the United States, New Zealand, Canada and so on.  So, the farcical argument that Mr McCrea put forward about us somehow abandoning the judiciary in Northern Ireland is just not a proper, articulate position that anybody with any credibility can sustain or put forward.
I would have some sympathy with Mr McCrea or Mr Allister's arguments were they to bring forward legislation to repeal the Northern Ireland schedule 2 to the Violent Crime Reduction Act 2006, which imposes a 10-year minimum sentence on those who are convicted of offences involving dangerous weapons.  That is a minimum sentence; there is no presumption and no discretion for the Northern Ireland judiciary.  If you are convicted of offences involving dangerous weapons, you go to jail for a minimum of 10 years.  Under article 70 of the Firearms (Northern Ireland) Order 2004, certain firearms offences carry a minimum sentence of five years for adults and three years for those aged 21 and under.  There is some differential between the two, but they are minimum mandatory sentences, not presumptive.  There is no exceptionality; it is a minimum, and this happens in Northern Ireland.  When I listen to some Members argue that, somehow, this is a new departure from the norm, it simply is not the case, and they are wrong to put that proposition forward.
Of course I respect the judiciary.  You can go through repeated speeches that I have made commending Sir Declan Morgan for having brought the judiciary to engage more publicly on all these issues and the way in which he engaged with the Justice Committee when I was a member of it.  Of course, there is a role for the judiciary, but there is a role for Parliament, and even Mr McCrea articulated that a balance needs to be struck.  The difference is that I believe that the balance needs to be more towards democratically elected and accountable politicians who can set the legal framework.  He believes that it should be for unaccountable judges, who the Attorney General described, in the current framework of appointing judges, as judges appointing themselves to these jobs.  Mr McCrea believes that they should be the ones left to decide on these issues.  I think that that balance is not the correct one because we, as politicians, can respond to the public's demands on these issues, and we can take forward legislation on them.
Claire Sugden spoke about this being an abuse, but I just do not accept that.  When we consider the cases of elderly people who have been attacked, it is right that we respond.  Our senior citizens have said that this is an issue of concern to them.  Claire Keatinge, the Commissioner for Older People, intimated as such a number of years ago when she spoke about our senior citizens becoming a specified vulnerable group, which would mean that that would be a specific aggravating factor.  That is something that could have been taken forward but has not been, despite there being a Programme for Government commitment on it and despite there being a vote in the Assembly in 2011.  There are other things that could have been done that have not been done.  We have specified a range of offences in Northern Ireland that are hate crimes against particular sections of our community, and I believe that our older population should be considered among specific vulnerable groups.  I think that our argument is well made.
I will close with a case from July 2014, when it was reported that an individual in Northern Ireland who was found guilty of attacking two elderly people of 72 and 75 years of age, leaving them bloodied and bruised, was given a deferred sentence for one year.  No custodial sentence was imposed.  The case was handled by the Ballymena Magistrates' Court and was reported last year.  This individual did not go to jail.  The judge said that what he had done was an absolute disgrace and that it was despicable how he had attacked these elderly people, yet he did not go to jail.  Do the judges get it wrong?  They most certainly do get it wrong, and I think it is right that this Parliament would legislate on this particular issue.

Jim Allister: Will the Member give way?

Paul Givan: I will give way to Mr Allister.

Jim Allister: If I follow, the Member's amendment could not possibly apply to a Magistrates' Court case.  He did not tell us what the individual he cited was charged with, but he must have been charged with an offence that was a summary offence, for which the Magistrates' Court has a maximum power of giving 12 months.  He could not possibly have attained seven years even under the Member's amendment, because, presumably, it can only apply in the Crown Court.

Paul Givan: My colleague highlighted that, of course, if the sentence is going to be seven years, these cases would need to be heard in the Crown Court as opposed to the Magistrates' Court.  I would have no difficulty with it being heard in the Crown Court, because it warrants being dealt with at that level.
Let us be clear:  legislation can and should be used to send a very clear message.  It can be a deterrent.  It should be a deterrent in these cases, because violent attacks on our older population are the least detected and least prosecuted offences that exist.
I believe that there is a failure in the system and that this amendment is an effort to try to remedy that.  However, it is going to be blocked, so let us see how other parties will now engage in this.  If people believe that we have got it wrong through some of the technicalities in it, let us see how we, collectively, can come up with a better system than the one that currently exists.  If anybody believes that the current system is working, they are not listening to our older population.

David Ford: It is interesting that, when we have been talking a lot about what sympathy we have and who has the most sympathy for older people who are the victims of crime, we are also conscious that today we might have sympathy for those who are bereaved and those who were injured by the balcony collapse in Berkeley, California.  That involved a significant number of students from this island, although we do not know exactly from where at this stage.
I will start with the easy one.  I have some slight concerns about the process of Mr Ross's amendment, otherwise known as Mr Allister's amendment, because of the early release conditions.  To some extent, it means that we are putting legislative authority in place before we have actually done the policy work.  However, that said, and aside from that little bit of nitpicking from the Minister, the wording is helpful.  If introduced, it would give the Department a discretionary power, rather than a mandatory requirement, to require unpaid community service to be undertaken.  It clearly builds very positively on the experience that we have seen across the border.  Anything that comes from the DUP supporting Irish policy is clearly to be welcomed, as it shows the openness of its approach in that respect.
In light of the severe budgetary pressures on my Department, I hope that Members will understand that any decision to introduce such a measure will need to be subject to a detailed cost-benefit analysis.  I need to give some measure of caution, and, certainly, I will not be in a position to rush to implement the amendment.  We would need to look at the potential effects on the Probation Board in terms of how it would sit alongside its community service programme, and we would need an analysis of the Department's employability strategy, so there are a number of issues.
The Prison Service employability strategy is a public commitment to support individuals in custody to develop the qualifications, skills and experience they need so that they can obtain employment when they leave.  There has been a lot of progress on that.  I have reported recently on the partnership between the Prison Service, the Belfast Metropolitan College and the North West Regional College to provide education and training opportunities to those in custody.  Improving prisoners' educational attainment and employment prospects will most certainly help to reduce the risk to the community by reducing the risk of reoffending and supporting a general desistance from crime.  There are real possibilities in that area.
Mr Douglas asked me specifically about matters relating to his experience of seeking to promote employment.  It is absolutely the case that I wish to see employment opportunities provided where possible.  He also asked about offences that would be seen as outside article 19.  The current list, as I have it, is that excluded from those provisions will be those serving life sentences, those serving extended or indeterminate sentences, those subject to notification requirements under Part 2 of the Sexual Offences Act 2003 and other prisoners convicted of more serious offences.  Obviously, that will be on the basis of individual risk assessment in many cases.
Whilst I certainly support the use of unpaid placements to support rehabilitation, my preference is that, where at all possible, we should be encouraging those leaving custody to obtain paid employment and to make their contribution that way.  However, I am happy to accept the amendment and to consider how a community service scheme might work as part of the package of services that we provide to those leaving custody in the future.  I think that that is a recognition of the reality as we seek to work through the detail of it.
If that was the easy one, amendment No 7 is certainly not easy to consider.  My starting position is certainly to agree with the comments made from all parts of the Chamber that said that, although all crime is to be condemned, crimes against older people and other vulnerable people are particularly abhorrent.  However, we also need to be careful that we do not make older people become more fearful about their safety.  I think that, at times, we exceeded that in this evening's discussion.  As I said at Question Time yesterday, statistics show that people aged 65 and over are the least likely to be victims of violent crime.  They accounted for less than 2·2% of such victims in 2014-15, even though they constitute 15·5% of the population.  We know, of course, particularly given the effects on anyone who is vulnerable, that one crime is one too many.  I appreciate that the aim of the amendment is to send out a message that such crimes will not be tolerated.  While I agree with that message, I cannot agree with the amendment.  It is flawed, it will not work within the existing legislative framework, and I believe it is not necessary.
The Programme for Government demonstrates the Executive's commitment to ensuring that older and vulnerable people are able to live their lives free from the fear of crime.  That commitment is reflected in a range of measures that my Department has taken forward to address sentencing issues and fear of crime and to reduce offending.  These include funding projects delivered by Age Sector Platform and Linking Generations Northern Ireland to, for example, raise awareness of existing crime prevention support and promote the benefits of intergenerational work.  Policing and community safety partnerships also deliver a range of initiatives aimed at tackling crime against older people.  Those include a number of schemes involving home security and a variety of crime prevention projects.
However, the thrust of this amendment is focused on sentencing.  The reality is that substantial custodial sentences are available to the judiciary under the current legislative framework for those convicted of violent crime.  Indeed, the Criminal Justice (Northern Ireland) Order 2008 introduced public protection sentences where offenders who are considered to pose a risk of serious harm can be detained indefinitely — indefinitely — and decisions on release are made by the parole commissioners and not by the sentencing judge.
For murder, a life sentence is mandatory.  For attempted murder or manslaughter, sentences up to life imprisonment are available.  For robbery and aggravated burglary, again life sentences are available.  For assault occasioning actual bodily harm, penalties of up to seven years maximum can be given.  Sentencing decisions within this legislative framework are a matter for the judiciary, taking account of all the factors pertaining in individual cases.  In making those decisions, judges are guided by sentencing guidelines, which already indicate that the courts should treat the age and vulnerability of the victim as an aggravating factor when assessing the appropriate sentence to be imposed.
Let me quote a further bit from the same Court of Appeal judgement that was quoted by Mr Basil McCrea earlier.  It is the judgement delivered, I believe, by Lord Justice Gillen on behalf of the court in the Crown v Cambridge in January.  As well as the point highlighted by Mr McCrea, it was said:
"There is an unbroken line of authority to the effect that in Northern Ireland the starting point in cases of robbery of householders where violence is used should be 10 years and in appropriate cases a sentence of 15 years is not excessive".
It further says in that judgement that:
"Aggravating factors will include ... Deliberate targeting of vulnerable victim(s)."
Where the law stands and the opportunities that we have are absolutely clear.  One of the purposes of sentencing has to be to act as a deterrent.  I know from the regular discussions I have with the Lord Chief Justice that judges take that responsibility seriously.  There has been considerable work done on guideline judgements, and the Judicial Studies Board has made a number of recommendations to colleagues.  That is significant work that is ongoing.
It is absolutely clear that older people are regarded as being, potentially, particularly vulnerable and, therefore, worthy of particular consideration.  Perhaps we should not be considering just older people, although Claire Sugden made an entirely reasonable point as to whether older people are those who are older than me, at 65, or include me, at 60.  That is a point that this particular proposal is slightly inconsistent on; although, given the difficulties we have in getting any older person's strategy through OFMDFM, it is perhaps not surprising that we have not got that defined.  We should perhaps also consider those who are physically disabled and those who suffer from learning disability.  There are issues of vulnerability that are not easily stated by regarding just one particular group of one particular age.
As an illustration of what the courts consider around older people as a particularly vulnerable group, let me quote another point from a Court of Appeal guideline judgement:
"It must be brought home to offenders who violate the privacy and security of old people in their homes and expose them to violence that immediate and heavy sentences will follow their detection of conviction."
I believe that that shows the judiciary responding.  I also believe strongly that judges are best placed to take account of the specific circumstances in each case and to sentence appropriately.
I have said many times that it is fundamental to our system of justice that judicial discretion is maintained and that sentences are imposed on a case-by-case basis by those who hear the entire case, not by those who read very limited reports in the media of what may be very long cases.
The Assembly knows my views on mandatory minimum sentences.  I have always argued that they make no allowance for the exceptional case, and there is always the possibility of such cases.  I acknowledge that this clause allows for a lesser sentence to be imposed in exceptional circumstances, but what those circumstances might be is unclear and will have to be determined by case law.  Mr Poots said that mandatory minimum sentences would ensure consistency.  There is no suggestion that they would ensure consistency; they would merely ensure a mandatory minimum.
When we look at the issue of exceptionality, there may be specific cases.  We have had highlighted, previously, the case of the paedophile pensioner, which Mr Allister mentioned on a previous occasion.  However, the reality is that we could see large numbers of cases of little more than, or possibly not even, common assault being considered under this.  It would be very bad law to have exceptionality considered in so many cases.
We cannot be sure that this clause, in its operation, would not impact unjustly on an offender before the courts.  The framework in legislation usually sets out the maximum penalty, not the minimum sentence, for an offence.  Of course, there are discrete exceptions for specific offences, but the proposed minimum seven-year sentence in this amendment would apply not to specific offences but to all violent offences, as defined in the proposed clause, at the very serious end of the spectrum and, more worryingly, offences that fall within the very broad definition of:
"an offence which leads or is intended or likely to lead ... to physical injury to a person aged 65 years or more".
A very broad range of offences would be covered, including incidents of very minor physical injuries and, indeed, cases where there was no injury whatsoever.  Whatever was said by Mr Poots, physical injury does not mean grievous bodily harm with or without intent; it does not mean actual bodily harm.  It would include common assault.  It would lead to anything that led to a physical injury.  Indeed, during the first Assembly mandate, I was assaulted in the Chamber by another Member who squeezed my arm to the point at which it was painful.  That would qualify as physical injury on the definition that is given and, therefore, would be covered by a mandatory seven-year minimum sentence, had I been over 65 at the time.
The outworking could mean that, if two people aged 65 or over had a minor physical altercation — perhaps they had drunk too much on an evening out — both would be liable to seven years' imprisonment unless they could show to the court that there were exceptional circumstances.  That shows the potential difficulties of legislating without the normal policy and scrutiny processes being carried through.
I first saw this clause, as other Members did, when it was tabled on 10 June, which clearly did not allow time to properly consider all of the legislative issues or all of the possible unintended consequences.  However, I must confess that Jim Allister and Alban Maginness have identified some, and it certainly appeared by the speech he made that Basil McCrea is seeking to join traditional lawyers' voice and is researching for a career at the Bar, because he also spotted some.

Paul Frew: What type of bar?
[Laughter.]

David Ford: It is clear that there would be many potential difficulties in the application, if this were passed.  For a start, the provisions are not restricted to trial on indictment, in the Crown Court.  Given all the problems that we have in managing courts, I find it difficult to believe that, when Mr Givan suggests that it is reasonable that all such cases be remitted to the Crown Court for trial, that it would be a realistic and reasonable use of resources, particularly if we consider cases like two 70-year-olds who fall out outside the pub and push each other a bit.
The usual maximum term of imprisonment for a summary offence is six months; in some cases, a maximum of 12, where allowed by law.  So, if passed, how would a district judge in a Magistrates' Court enforce these provisions?  He or she simply could not do it within existing law.  So does that mean that the district judge would be passing up to the Crown Court matters that do not justify hearing in the Crown Court, which would produce significant clogging up of business there and, potentially, end up with Crown Court judges saying that there are exceptional circumstances in a great number of them?  As others have said, the clause would also impose a minimum sentence that is not within the range of sentence permitted by law.  The definition would require a seven-year sentence to be imposed for some offences with a maximum of two years' imprisonment.
All those issues mean that I cannot support this amendment, not because I believe that those who commit violent crimes against the elderly should not be punished appropriately, but because I believe that the courts are best placed to do this and because the draft revisions are not competent.  The "violent offence" reference is far too wide; the reference to "the court" does not deal with the issue as to what level of court; and tabling an amendment at this stage of the Bill is not an appropriate way to introduce legislation on such a complex issue.  It is without consultation, consideration or scrutiny by Committee.  Changing laws in this way is not, I believe, the correct place for this Assembly.  It is not how good law is made.  As Justice Minister, I have to consider the integrity of the criminal law as a whole and ensure that it is fit for purpose and not liable to dysfunctional outcomes.  There is also, I believe, a similar responsibility on the Assembly.  So, whilst I am happy to support Mr Allister's amendment, Mr Ross, I am quite happy to say that it is not possible to accept with any credibility the second amendment on mandatory minimum sentences.

Alastair Ross: Just to save the blushes of Mr Allister, in his contribution, Mr Elliott got somewhat confused between the Member for East Antrim and the Member for North Antrim, but I think that we all understood what he meant nevertheless.
I do not intend to respond to all the points that have been made by Members in relation to amendment No 7, not least because a petition of concern has been lodged against it, and also because Mr Givan has adequately addressed some of the criticisms that have been made against it.  All I will say is this.  In my opening comments, I said that I was always cautious around minimum sentencing, but I will make this point:  some of those who waxed lyrical today about opposing minimum mandatory sentences on principle should, perhaps, be invited to examine their own voting records on other Bills, just to see whether they have been entirely consistent in their approach.
I move on to address some of the comments made on amendment No 6, which is the amendment in my name.  The Deputy Chair, Raymond McCartney, gave his support to amendment No 6, for which I am grateful.  He talked about the amendment being required to fill the gap that there is in allowing for community service.  He talked about it being productive in allowing for rehabilitation.  I think that Members across the House want to see that to ensure that there is rehabilitation, as well as punishment, for offenders.  Alban Maginness also spoke in support of the amendment and talked about the opportunity that there is for employment.  That is a point that Mr Douglas made as well.  What we want to see is people who have served their time in prison being able to get out and go into meaningful employment.  None of us wants to see them living on welfare at the taxpayers' expense.  We want to see them be productive, turn their lives around and get into work.  That is something that Members across the House support.
Mr Elliott called the amendment "interesting", which always gives me a little bit of concern, but I think that he was generally supportive.  He said that it was a positive contribution and he talked about the need for examining alternatives and different means of punishment and sentencing.  In the justice seminars that we have been running over the last number of months, the idea of looking for suitable diversions, if the offence is of a low enough magnitude, has been discussed.  Alternatives to prison are something that may be appropriate for very low-level, first-time offenders.  It is an interesting area that, undoubtedly, the Justice Committee will look at again in the future:  what works best for outcomes and what is most cost-effective for the taxpayer as well.
Mr Dickson, in his support, talked about the early release conditions, and that is something that we will have to work out.  He talked it being a restorative approach, and I think that it is probably right to ensure that the end of a sentence can be carried out in the community, but still paying back that debt to society and still seeing out the full term of the sentence, which is important.  He talked about the need for collaboration; that is hugely important no matter what we do.  In this instance, we need to see collaboration between the Department, the Probation Board and the Prison Service, and that is exactly the type of model that I will be proposing.
Mr Sammy Douglas talked about the strict licence conditions and how we should get low-risk offenders back into society by transitioning them.  That is the very point that we are trying to make with this amendment:  it is a way of transitioning offenders back into normal life in a way that is managed by the Probation Board and allowing offenders to repay their debt to society in a meaningful way.  He then went on to discuss some of the other articles of the Criminal Justice (Northern Ireland) Order 2008.  Article 26 is about curfew and article 30 about recall.  It was the discussion that we had on those articles that inspired the amendment in the first instance.
We then had a contribution from Mr McCrea in the corner.
There is an old saying that a little knowledge is a very dangerous thing, and Mr McCrea certainly tried to demonstrate his little knowledge when it came to amendment No 6 and, of course, in other contributions that he made during interventions. He said that the amendment did not do very much.  At present, there is a gap under article 19 of the Criminal Justice Order 2008.  There is no provision in it for the Department or the Probation Board to ensure that somebody who is released early from prison has to do something productive.  That is why the amendment was tabled, and, rather than doing very little, it is a significant change that informed Members have supported this evening.  He talked about a lack of detail on what it actually does.  He mentioned the need to consult the Probation Board and asked "Why?". It is important that we consult the people who know what they are doing.  The point that he tried to make on amendment No 7 was that we should not interfere with the judiciary because they know better than we do: why does he not see the same merit in amendment No 6, through which we will talk to the Probation Board because it has on it the people who know best and are there to monitor offenders?  I think it entirely appropriate that the Minister and Department consult the Probation Board to ensure that the conditions of any early release are absolutely watertight.
The Member also said when addressing amendment No 7 that we should not be prescriptive yet criticised the lack of prescription in amendment No 6.  That is not particularly consistent.  He then said that he did not know anything about the amendment and what it would do.  I draw his attention to three documents, the first of which is the Hansard report of the meeting that we had with officials on the issue.  It is not some sort of secret document; it is on the Internet and is available in the Library, should he have wished to consider the matter further.  I draw that to the Member's attention, and I will furnish him with the documents after the debate, if he wishes.  I draw his and perhaps other Members' attention to a part of the transcript in which we dealt specifically with the Probation Board.  Mr Doran, responding to a question that I put to him about the requirement for some sort of community service, said:
"If there are conditions on their licence, they will be required to do it.  However, if there are no conditions, because they are still technically prisoners on early release, we cannot compel them to undertake a programme.  They will be subject to curfew, as Alan said."
He went on to say:
"Our colleagues in the South have a scheme for undertaking reparative work.  They have legislation there; Alan referred to community return.  I met colleagues from the South last week, and it is a very impressive scheme, through which people get early release and undertake community service.  We do not have the legislative authority to do that.  It is something that PBNI would be keen to see at some stage in the future, but it is not available at the moment."
The amendment is offered because the Probation Board has said that it is something that, it thinks, would be valuable in the future.
The second document that I draw the Member's attention to is a report of the Thornton Hall project review group, which is also available on the Internet.  Again, it is not some sort of secret document.  It goes into some detail about the Irish scheme, which is called earned temporary release into community service. The report talks about the reason that you would have such a scheme.  It goes into detail on what the scheme would look like and some of the conditions that would be attached to it.  I will furnish the Member with that as well.
The third document is the legislation in the Irish Republic.  The Minister suggested that it was unusual for the DUP to look to the Irish Republic for a model, but I can assure the House that I will look anywhere in the world where I think there is an innovative approach to justice issues.  If it is something that, I think, we can replicate in Northern Ireland, I will certainly give consideration to it.  I will furnish the Member in the corner with that legislation as well.
The Member also made a rather bizarre intervention in which he tried to envisage a scene from 'Cool Hand Luke' in which there were people in chain gangs having to do work in, I think he said, easily identifiable uniforms.  Bringing it down to that level adds little value to the debate.  We are having a proper discussion that every other Member sees value in and views as a progressive policy that is tackling a real issue, yet the Member tries to bring in such spurious points.  Of course, Mr McCrea is not opposed to uniforms: I remind the House that this is the man who wore a red tie as a uniform for about three or four years when he was first elected, so he knows something about it.
The contribution from Mr McCrea really was of little value to the House.  If he had wanted to make a proper contribution on amendment No 6, he should at least have tried to inform himself on its detail.

Basil McCrea: What colour of tie are you wearing, as a matter of interest?

Alastair Ross: Indeed. With my red tie, I have clearly been inspired by Mr McCrea.

Jim Allister: Is that Basil's tie?

Alastair Ross: I will ensure that I never wear it in the House again, if that is the comparison that is being made.
Ms Sugden talked about the policy being progressive.  Some people are perhaps uneasy with that terminology.  I think that it is a progressive policy, but the value in the amendment is that it ensures that prisoners have to see out their entire sentence.  That gives confidence to the community, who could be concerned that prisoners will be released early from prison without having to see out their sentence.  It also transitions an offender into normal life in a managed way, and, of course, the increased value is that the taxpayer does not have to pay for that.  It is a progressive policy, and most people in society will see value in it.
The Minister talked about this being the easy amendment to deal with.  I am glad that that is the case.  He said that it was useful, and, as a Committee, we would be interested in working with him and the Probation Board in the future to work up some of the detail.  I certainly think that there is merit in it.  I am pleased that there has been support from all sides of the House for the amendment, and, at the risk of losing any support, I shall stop there, and we can proceed to the votes.
Amendment No 6 agreed to.
New clause ordered to stand part of the Bill.
New Clause
Amendment No 7 proposed:
After clause 89 insert&quot;Sentencing for violent offences against older people89A.—(1) This section applies where an individual is convicted of a violent offence and that individual was aged 18 or over when the offence was committed.(2) The court shall impose a custodial sentence for a term of at least seven years (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.(3) For the purposes of this section &#x0027;violent offence&#x0027; means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).(4) If there are exceptional circumstances which justify?—  (a) the imposition of a lesser sentence than that provided for under subsection (2), or  (b) the exercise by the court of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968,the court shall state in open court that it is of the opinion that such exceptional circumstances exist and the reasons for that opinion.(5) Where subsection (4) applies the Chief Clerk shall record both the opinion of the court that exceptional circumstances exist and the reasons stated in open court which justify either the imposition of a lesser sentence or the exercise of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 as the case may be.(6) For the purposes of subsection (2) &#x0027;custodial sentence&#x0027; shall not include a sentence in relation to which the court has made an order under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968.(7) For the avoidance of doubt, an offence falling within the definition of subsection (3) is a violent offence for the purposes of this section whether or not there is evidence that any individual who is convicted of such an offence knew or suspected that any person who dies or sustains physical injury, or any person who is intended or likely to die or sustain physical injury, is aged 65 years or more.(8) In section 36 (reviews of sentencing) of the Criminal Justice Act 1988 in subsection (9)(d) after &#x0027;2015&#x0027; insert the words?—&#x0027;and a sentence required to be imposed by virtue of section 89A of the Justice Bill 2015&#x0027;.&quot;. — [Mr Poots.]

Mr Speaker: A valid petition of concern was tabled today in relation to the amendment.  In accordance with Standing Order 28(1), no vote may be held on a matter that is the subject of a petition of concern until at least one day after the petition of concern has been presented.  The business on today's Order Paper, therefore, cannot be completed tonight.  The Business Committee met this evening and agreed that unfinished business from today's sitting would be concluded at the start of business on Monday 22 June 2015.

Jim Allister: On a point of order.  In light of that announcement, can you clarify whether it will now be possible to table further amendments on the undebated parts of the Bill by Thursday morning?

Mr Speaker: It is an interesting point, but Monday will be a continuation of today's business, so there will be no further opportunity.  We are concluding today's business, as it happens, on Monday.
The debate stood suspended.
Adjourned at 8.47 pm.